Transcript Retaliation Charges: How to Protect and Prevent

Bolton HR Consulting and Leadership Development
Facts About Retaliation-Definitions
Retaliation occurs when an employer, employment agency
or labor organization takes an adverse action against a
covered individual because he or she engaged in a
protected activity.
Definitions – Adverse Action
 An adverse action is an action taken to try and keep
someone from opposing a discriminatory practice, or
from participating in a employment discrimination
proceeding. Examples of adverse actions are:
 Termination, refusal to hire and denial of promotion.
 Other actions affecting employment such as threats,
unjustified negative evaluations, unjustified negative
references or increased surveillance.
 Any other action such as an assault or unfounded civil or
criminal charges that are likely to deter reasonable
people from pursuing their rights.
Definitions – Adverse Action
 Adverse actions do not include
 Petty slights and annoyances, such as stray negative
comments in an otherwise positive or neutral
evaluation.
 Snubbing a colleague, or negative comments that are
justified by an employees poor work performance or
history.
Definitions – Adverse Action
 It is unlawful for a worker’s current employer to
retaliate against him or her for pursuing an EEO
charge against a former employer.
 However, employees are not excused from continuing
to perform their jobs or follow their companies
legitimate workplace rules.
Definitions – Covered Individuals
 Covered individuals are people who have opposed
unlawful practices, participated in proceedings or
requested accommodations related to employment
discrimination based on race, color, sex, religion,
national origin, age, or disability. Individuals who have
a close association with someone who has engaged in
such protected activity also are covered individuals
 Example: It is illegal to terminate an employee because
his or her spouse participated in employment
discrimination litigation.
Definitions – Covered Individuals
 Individuals who have brought attention to violations of
law other than employment discrimination are not
covered individuals for purposes of antidiscrimination retaliation laws.
 For example: Whistleblowers who raise ethical,
financial, or other concerns unrelated to employment
discrimination are not protected by the EEOC enforced
laws.
Definitions – Protected Activity
 Opposition is informing an employer that you believe that
he/she is engaging in a prohibited discrimination.
Opposition is protected as long as it is based on a
reasonable, good-faith belief that the complained of
practice violates anti-discrimination law; and the manner
of the opposition is reasonable. Examples are:
 Complaining to anyone about alleged discrimination against
oneself or others.
 Threatening to file a charge of discrimination.
 Picketing in opposition to discrimination.
 Refusing to obey an order reasonably believed to be
discriminatory.
Definitions – Protected Activity
 Examples of activities that are not protected
opposition include:
 Actions that interfere with job performance as to render
the employee ineffective.
 Unlawful activities such as acts or threats of violence.
Definitions – Protected Activity
 Participation means taking part in an employment
discrimination proceeding. Participation is protected
even if the proceeding involved claims that ultimately
were found to be invalid. Examples of participation
include:
 Filing a charge of employment discrimination.
 Cooperating with an internal investigation of alleged
discriminatory practices.
 Serving as a witness in an EEO investigation or
litigation.
Definitions – Protected Activity
 A protected activity can also include requesting a
reasonable accommodation based on religion or
disability.
Charge Statistics
Retaliation Charges – All Statues
 2004
 2005
 2006
 2007
 2008
 2009
 2010
22,740
22,278
22,555
26,663
32,690
33,613
36,258
28.6%
29.5%
29.8%
32.3%
34.3%
36.0%
36.3%
Charge Statistics
Retaliation – Title VII Only
 2004
 2005
 2006
 2007
 2008
 2009
 2010
20,240
19,429
19,560
23,371
28,698
28,948
30,948
25.5%
25.8%
25.8%
28.3%
30.1%
31.0%
31.0%
Charge Statistics
Total Charges – 2010
 Race
 Sex
 National Origin
 Religion
 Age
 Disability
 Equal Pay
 Gina
 Retaliation
35,890
29,029
11,304
3,790
23,264
25,165
1,044
201
36,258
35.9%
29.1%
11.3%
3.8%
23.3%
25.2%
1%
.2%
36.3%
Charge Statistics
 2010 was the first year that Retaliation Charges were
the highest percentage of all charges. Indications that
this trend will continue in 2011.
 Claims including a retaliation charge rose by the year
ending in 2008 by 23%, while claims that did not
involve retaliation rose 12% during the same period.
Court Case
Thompson v. North American Steel
 The issue in this case was can an employee who claims
they were fired because his fiancée filed a sex
discrimination charge against their mutual employer
sue for retaliation under Title VII of the 1964 Civil
Rights Act
 The ruling was yes they can.
Discussion of Protected
Activity/Conduct
Question:
What if an employee files a discrimination charge and
loses? Is he or she fair game for retaliation?
Protected Activity/Conduct
Answer:
No, retaliation law protects employees who assert rights
protected by law even when employees turn out to be
wrong about whether their rights were violated.
Protected Activity/Conduct
Question:
If an employee is engaged in protected conduct, does
that mean you cannot terminate their employment?
Protected Activity/Conduct
Answer:
Not at all. It means that their employers cannot fire
them or take other material, adverse action for engaging
in that conduct. If there are other viable employments
issues, those can still be addressed.
Protected Activity/Conduct
Question:
How tangible does the retaliation have to be in order to
file suit?
Protected Activity/Conduct
Answer:
The U.S. Supreme Court defined how much the employee
must suffer in Burlington Northern & Santa Fey Ry v. White –
“an adverse action would have been materially adverse to a
reasonable employee or applicant….[A] retaliation plaintiff
(must) show that the challenged action might well have
dissuaded a reasonable worker from making or supporting a
charge of discrimination.”
Protected Activity/Conduct
Question:
Can a poor job reference on a former employee be
considered retaliation?
Protected Activity/Conduct
Answer:
It is possible. Protection from retaliation generally
follows employees after they leave employment. As a
result the courts have allowed employees to recover
damages resulting from retaliatory employer references.
Protected Activity/Conduct
Question:
What evidence is required to prove a retaliation claim?
Protected Activity/Conduct
Answer:
The employee must prove:
 They engaged in protected conduct.
 They suffered a tangible, adverse employment action.
 There is a casual connection between their protected
conduct and the adverse action.
Protected Activity/Conduct
Question:
How important is timing?
Protected Activity/Conduct
Answer:
Time is probably the most important evidence of a
connection between protected conduct and a reprisal.
Protected Activity/Conduct
Question:
Is there such a thing as retaliation by harassment?
Protected Activity/Conduct
Answer:
Yes. A campaign of retaliatory harassment, even without
a discharge or other economic loss, can be a material
adverse action if it is severe or pervasive enough to
negatively affect an employees ability to do his or her job.
Strategies to Prevent Retaliation
 Establish a policy against retaliation.
 Spell out exactly what retaliation is.
 Make it perfectly clear that your organization will not
tolerate retaliation from any of your administrators,
managers or employees.
 Provide the steps to take if an employee feels they have
been retaliated against.
 Be sure employees know how to access the policy.
Strategies to Prevent Retaliation
 Conduct Training
 Conduct annual training for administrators, managers
and employees. This training should include an
opportunity to have a open discussion and Q’s and A’s.
10 minute annual videos will most likely not suffice.
 Conduct training for all new administrators, managers
and employees as soon as possible following their first
day of employment.
Strategies to Prevent Retaliation
 Communicate with the complaining employee.
 Explain to the employee that you are taking the complaint
seriously.
 Tell the employee that you want and need to hear about
anything that happens that the employee considers hostile or
negative.
 Explain what retaliation is and refer them to your policy. Tell
the employee that you won’t tolerate retaliation from anyone
in the company.
 Follow through and follow up in an appropriate time frame.
Strategies to Prevent Retaliation
 Keep confidential any complaints that you have.
 The fewer people who know about a complaint, the
smaller the chances are that someone will retaliate
against the complainer.
 Only talk to individuals that absolutely need to know.
 When you talk with individuals explain what retaliation
is and that you will not tolerate it.
Strategies to Prevent Retaliation
 Document, Document, Document
 Keep notes of everything you do to prevent retaliation.
 Send the complaining employee a letter confirming
what you have told them about retaliation.
 Keep accurate notes of every conversation you have
regarding the complaint filed by the employee.
Strategies to Prevent Retaliation
 Final Thoughts:
 This is about Cultural Expectations and Norms. One of
the best prevention and protections is creating or
utilizing a business culture that is based on open and
honest relationships between Administrators, Managers
and Employees.
 Build relationships with your managers.
Questions and Answers