Understanding and Avoiding Retaliation Claims

If employment law claims can be characterized as weapons, retaliation is the stealth bomber. In countless cases, employers have disproved discrimination but the employees have nonetheless won on their retaliation claims by proving something bad happened as a result of their (albeit) merit less discrimination claims. For example, in one typical case, although a pro se plaintiff’s relatively benign complaints did not amount to sexual harassment, the court of appeals allowed her claim of retaliatory discharge for making the discrimination claim to proceed to the jury. Because retaliation claims often take employers by surprise, it is important to understand how to anticipate, ward off, and defend such claims.

Virtually all significant federal and state antidiscrimination laws include an anti-retaliation provision. These laws prohibit employers from retaliating against employees who engage in "protected activities." Protected activity consists of the following:

1. Opposing a practice made unlawful by one of the employment discrimination or whistleblower statutes (the "opposition clause"); or

2. Filing a charge, testifying, assisting, or par- ticipating in any manner in an investigation, proceeding, or hearing under the applicable statute (the "participation" clause).

Protected activity in "opposition" cases typically includes an employee complaining to her employer of discrimination against herself or others, threatening to file a formal complaint alleging discrimination, refusing to obey an order because of a reasonable belief that it is discriminatory, or requesting a reasonable accommodation or religious accommodation.

Examples of "participation" protected activity include filing a charge of discrimination, testifying at an EEOC hearing, participating in a sexual harassment investigation, and the like. For example, a violation may be found if an employer refuses to hire an applicant because it is aware that the employee had filed an EEOC charge against his former employer.

Courts are cognizant that employers may refuse to discipline an employee if that employee has recently lodged a discrimination complaint, making such a complaint tantamount to a "get out of jail free" card for employees engaging in job misconduct. Therefore, the manner in which an employee protests the perceived discrimination must be reasonable in order for the anti-retaliation provisions to apply. Disruptive or unreasonable protests against discrimination are not "protected activity" and therefore incapable of supporting a retaliation claim.

Employers should craft an anti-retaliation policy and disseminate it to their employees. The policy should include a pronouncement that it is against company policy to retaliate and identify the procedures the employer will follow to investigate and address an employee’s complaint.

To prevent retaliation claims, employers should be vigilant when an employee complains to them or some governmental agency about discrimination or other practices forbidden by law. Managers should be trained to implement procedures for handling employee complaints in order to avoid retaliation accusations. Mangers should be especially cautious because in California they can be held individually liable for engaging in retaliation.

Employers should take heed of their employees’ complaints and concerns, and an effective anti-retaliation policy should reflect the employer’s openness and sensitivity to those complaints and concerns. Above all, do not ignore the employee, or worse, punish the employee for making a complaint. The best approach is to thank the employee for bringing the matter to the company’s attention, thoroughly investigate the particular claim or concern, and then act accordingly. Note that jurors are more likely to favor such "whistleblowers" at trial, especially in the wake of Enron and related business mishaps.

Employers should consider the context and the history before imposing discipline or taking any adverse employment action towards an employee who has engaged in a "protected activity." Carefully consider whether the employee has recently complained of unsafe work conditions, asked for medical leave, opposed discrimination, etc., and if the employee has done so, even a justifiable adverse employment action may not foreclose a lawsuit.

Particularly with the drastic step of termination, a patient and cautious approach is best. Continuing to document the progressively worsening nature of an employee’s performance is a good strategy. Given more time, the employee may well pave his or her way to termination.

Employers should not take any adverse action toward an employee unless they can justify the result in writing and all managers are "on board" for that decision. The last thing an employer needs is a split of opinion among its leadership on whether an employee should or should not have been disciplined.

Employers can prevent retaliation claims from arising with a better understanding of this powerful claim. Effective policies and training are the best ways to defuse any retaliation claims that may be coming down the pike. If employers provide employees with opportunities to voice and process their grievances, and otherwise respond appropriately to the complaints, those employers will fare better against retaliation claims.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.