A Division of Thompson Media Group
Preventing Workplace
Retaliation Claims
The Bottom Line
Session Goals
Understand
what
retaliation is and is not
Identify subtle
workplace risks
Proactive Employer
Prevention
tips, tools
and strategies
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The High Cost…
Compensatory damages
Punitive damages
Personal liability in some
jurisdictions
Reinstatement
Injunctive relief
Litigation costs
Attorneys’ Fees
Morale and Turnover
Bad press
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The High Cost…
Relatively easy cases to prove
Two shots to win a weak case
No
need to prove underlying
discrimination
Very broad protection
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Some of the Laws…
Title VII
42 U.S.C. §1981
Age Discrimination in Employment Act
(federal and non-federal sector provisions)
Americans with Disabilities Act
Family & Medical Leave Act
National Labor Relations Act
Fair Labor Standards Act
OSHA, EPA, ERISA, PDA, USERRA
State and local laws
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Example of State Law
California Gov. Code §12940(h) makes it an
unlawful employment practice
“for any employer…to discharge, expel, or
otherwise discriminate against any person
because the person has opposed any
practices forbidden under this part or
because the person has filed a
complaint, testified, or assisted in
any proceeding under this part.”
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More Ways to be Sued
CBOCS West, Inc. v. Humphries
(2008)
42 U.S.C. §1981 prohibits not only race discrimination
but also permits retaliation claims even though the
laws make no mention of a retaliation cause of action
Significance - §1981 vs. Title VII
§1981 has a longer statute of limitations – 4 years vs. 300
days for Title VII of the alleged discriminatory act
No limitations on punitive and pain and suffering damages
Plaintiff may file a lawsuit immediately, no exhaustion of
administrative remedies
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More Ways to be Sued
Gómez-Pérez v. Potter (2008)
29 U.S.C. § 633a
ADEA’s federal sector provision now permits
retaliation claims even though the law does not
explicitly mention retaliation (unlike the private
sector provision which does mention retaliation)
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More Ways to be Sued
Kasten v. Saint-Gobain Perf. Plastics Corp.,
No. 09-834, U.S. Supreme Court (3/22/11)
Plaintiff claimed he had been fired in retaliation for
his verbal complaints regarding the location of the
time clocks
Sole question before the high court was whether the
term "filed any complaint" includes oral as well as
written complaints
Held: oral complaints count!
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Who is Protected?
Applicant
Current
employees
Former employees
Someone closely related to the
complaining party
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Who is Protected?
Thompson
v. North American Stainless, LP
(U.S. Supreme Court, 2011)
Harming
a close colleague of a complainant may now
constitute unlawful retaliation
Title VII extends protections to “persons aggrieved.”
That term is broader than just the employee who
engages in protected activity.
Court would not specify the types of relationships
entitled to protection
Burlington standard reinforced
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Federal Prima Facie Case
Plaintiff engaged in protected activity
Employer subjected the plaintiff to a
materially adverse action
not limited to actions or harms that are related to
employment or occur at the workplace
Causal link between the protected activity
and the materially adverse action
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Protected Activity: Opposition
Employee
opposes unlawful practices
Employee must reasonably and in good
faith believe the conduct is unlawful
Protection exists even if conduct is later found to
not be discriminatory
13
Supremes Expand Opposition Clause
Crawford
v. Metropolitan Govt of Nashville
and Davidson County, Tennessee (2009)
protects an employee who speaks out about
discrimination during an employer’s
investigation into another employee’s complaint
of discrimination from retaliation.
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Reasonable Opposition
Peaceful
picketing
Threatening to file a complaint with state /
federal agency
Informal or formal complaints to management
Requesting a reasonable accommodation
Disability
Refusing
or religious
to obey an order
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UNreasonable Opposition
Violating legitimate company policies / rules
Refusing to perform work
Intentionally disrupting employer’s business
Interfering with business opportunities
Violent picketing
Not giving employer some notice that the conduct
is unlawful
Badgering a co-worker to provide a witness
statement and attempting to coerce her to change
her statement
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Reasonable Opposition?
Paul was told to move Dorothy, a counter
employee, who was missing many teeth, to
the kitchen, away from customers. Paul
refused believing that moving Dorothy would
be discriminatory. Paul was later terminated
and later sued for retaliation.
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Reasonable Opposition?
Abby complains to her
supervisor about graffiti in
the workplace that is
derogatory to women.
18
Reasonable Opposition?
Graham complains he
didn’t receive a promotion
because of his disability.
© copyright 2012 Employment Practices Specialists. All rights reserved.
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Reasonable Opposition?
Graham complains he didn’t
receive a promotion because
of his disability.
The position required a law
license and Graham did not
have one.
20
Beware of Vague Opposition
Employee
does not have to explicitly inform
employer of opposition to a particular
practice
see
Yanowitz v. L'Oreal USA, Inc., (2005) 36 Cal.4th
1028
Conduct
Look
alone can be opposition
at totality of circumstances
Read between the lines
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Protected Activity: Participation
Employee
filed a charge, testified, assisted or
participated in any manner in an
investigation, proceeding, hearing or
litigation
Protection exists regardless of the validity or
reasonableness of the charge
22
Protected Activity: Participation
Protection is very broad and extends to
someone so closely related to or associated with
the person engaging in protected activity
protected activity with a different employer
23
Protected Participation?
Brad worked for Big Paper Company. He
testified in an employment discrimination case
filed by a co-worker against the company. Brad
honestly testified he had been involved in some
of the alleged unlawful sexual harassment that
was the basis for the lawsuit.
Big Paper Company fired Brad telling him his
testimony was “damning” to the defense and he
violated the company’s anti-harassment policy.
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Materially Adverse Action
Burlington Northern & Santa Fe Railway Co. v. White
(2006) 126 S. Ct. 2405
“Employer actions that would have
been materially adverse to a
reasonable employee or job applicant."
Significant, not trivial
Objective standard
Reasonable person in plaintiff’s position,
considering “all the circumstances”
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Materially Adverse Action
Actions
that
would
discourage a reasonable employee from
making or supporting a complaint
are not limited to affecting the terms and
conditions of employment
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Materially Adverse Action
The anti-retaliation provision of Title VII
“extends beyond workplace-related or
employment-related retaliatory acts and
harm”
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Materially Adverse Action
Refusal to hire
Denial of job benefits
Denial of promotion
Demotion
Suspension
Reprimands
Negative job reference
Termination
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Materially Adverse Action
Threats
Negative evaluations
Harassment
Solicitation of negative comments
Refusing to give employee
opportunity to respond to adverse
employment action
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Materially Adverse Action
Loading an employee down with
additional work
Subjecting employee to extra
scrutiny in response to a complaint
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Typically Not - Materially Adverse Action
Petty slights and minor annoyances
Lack of good manners
Feeling frightened and humiliated
Embarrassed
Mere ostracism
Negative performance evaluation
Changes in employment resulting in inconvenience or
an alteration of job responsibilities
Caveat: view each of these in
light of the totality of circumstances and
the reasonable employee standard
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Materially Adverse Action?
Chrissie was allowed to work a flex-time
schedule of 7 a.m. to 3 p.m. so she could care
for her developmentally disabled son. Some of
her duties were reassigned to others and she
filed a charge of race discrimination based on
that fact.
Soon after, her employer rescinded her flex-time
schedule and eliminated her position. She was
assigned to a 9-to-5 position, and her flex-time
request was denied.
32
Materially Adverse Action?
Dory filed a claim for sexual harassment. Her
performance rating at her next review was
lowered from “excellent” to “very good.”
33
Materially Adverse Action?
Barney filed a charge alleging he was denied
a promotion because of his national origin.
One week later, his supervisor invited a few
employees out to lunch. Barney believed the
reason his boss excluded him was because of
his national origin charge.
34
Materially Adverse Action?
Same facts, but beginning one week
later, Barney’s supervisor begins
inviting all of the employees in the
department, except for Barney, out
for weekly lunch meetings.
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Causal Link
Break the link!
Beware of
Timing
Identity of the person
making the decision
Terminated employee's
job performance before
termination
36
Employer’s Defense/Burden
Employer
had a legitimate, non-retaliatory
reason for the employment decision
Make
sure all significant contributors to the
decision had legitimate non-discriminatory
motives
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Beware of Retaliatory Harassment
• Majority of federal courts hold that Title
VII prohibits retaliatory harassment
• Employee is harassed because of
protected activity
• Hostile work environment framework
applies
• Separate claim
38
Promptly and thoroughly
investigate all claims
Secondary review of
employment decisions
Suspensions or terminations
Warnings that may adversely
affect an employee’s
performance or future job
opportunities
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Listen to complainers
Lessons from Crawford:
ASK employees why they are refusing to or begrudgingly follows
orders
Carefully document when employees, during internal investigations,
claim to have suffered similar unlawful treatment
Treat “me too” claims as new and distinct complaints subject to
independent investigation and protection from retaliation
Apply Company rules consistently
Watch out for the causal connection
Wait a significant amount of time before taking any adverse action
Run decisions by counsel or management
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Policies
Anti-retaliation
Ethics, code of conduct
Clear Complaint Procedures
Train managers
Discuss personal liability issues
Ensure management is aware of whistleblower
statutes that may apply to the business or
industry
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Limit those who “need to know” employee
engaged in protected activity
Beware of unjustified negative job references
DOCUMENT, DOCUMENT, DOCUMENT
FOLLOW-UP IS KEY!!!
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Walk-the-walk against retaliation
Get buy-in from all management of seriousness
of retaliation claims
Publicize your commitment
Take your company’s ethics pulse
What’s the current situation concerning
whistleblowing and ethical conduct at your firm?
Do you have existing standards?
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Thank you !
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4-30-2012 Retaliation Claims on the Rise: Minimize Your Risk
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