Transcript Document

Not So Sweet Revenge:
When the Need to Retaliate Gets the Best of You
Rosemary O’Shea
www.bakerlaw.com
Overview
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Why Worry About Retaliation?
Definition of Retaliation
Survey of Laws Prohibiting Retaliation
Relationship Between Retaliation Claims and Discrimination
Claims
Nuts and Bolts of a Retaliation Claim
What Types of Actions May Spawn a Retaliation Claim?
Red Flags of Retaliation
Why the Timing of Adverse Actions Is Critical in a
Retaliation Case
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Why Worry About Retaliation?
• Retaliation claims have been on the rise over the past decade,
comprising over 50% of all charges filed with the EEOC.
• Anti-retaliation provisions dot the landscape of federal and
state statutes everywhere.
• Retaliation can be a minefield for institutions as these claims
can stand on their own regardless of how frivolous the main
claim of discrimination may be.
• Juries appear to be sympathetic to these claims.
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Definition of Retaliation
• Retaliation is a material
adverse action against a person
because he or she sought to
pursue his or her legal rights.
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Survey of Laws with
Anti-Retaliation Provisions
• Title VII of the 1964 Civil Rights Act (“Title VII”)/ Florida Civil
Rights Act (“FCRA”)
• Title VI of the 1964 Civil Rights Act (“Title VI”)
• Section 1981
• Section 1985(3)
• Equal Pay Act
• Age Discrimination in Employment Act (“ADEA”)
• Americans with Disabilities Act (“ADA”) (Title I and Title II
and Title III)
• Family and Medical Leave Act (“FMLA”)
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Survey of Laws with
Anti-Retaliation Provisions (cont’d)
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Fair Labor Standards Act (“FLSA”)
Occupational Safety and Health Act (“OSHA”)
Immigration Reform and Control Act (“IRCA”)
Workers' Compensation
Uniformed Services Employment and Reemployment
Rights Act (“USERRA”)
• Title IX of the Education Amendments of 1972
• Section 504 of the Rehabilitation Act of 1973
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Winning the Battle Only
to Lose the War
• Contrary to popular belief - Retaliation claims
stand on their own regardless of the validity of
the discrimination claim.
• Juries routinely find that an employer is not
liable for discrimination but then find that the
employer retaliated after the employee
complained or supported someone else’s
claim.
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Winning the Battle
Only to Lose the War (cont’d)
• A plaintiff has a greater than 50% chance of
receiving a favorable jury verdict when a
retaliation claim is asserted, and juries tend to
return substantial awards.
• Protected activity is generally defined broadly.
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Nuts and Bolts of a
Retaliation Claim
www.bakerlaw.com
Nuts and Bolts
of a Retaliation Claim
• Title VII of the Civil Rights Act of 1964
is probably the most common law
prohibiting retaliation.
• Also applies under all the other laws
listed before which govern the workplace
or the academic environment.
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Building a Prima Facie
Case of Retaliation
To prove retaliation, the plaintiff must first establish a
prima facie case by establishing the following three
elements:
1. They engaged in protected activity;
2. They suffered a material adverse action
(something that would deter a reasonable person
from exercising a protected right); and
3. There was a causal connection between the
protected activity and the adverse action sufficient
to support an inference of retaliation.
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What Constitutes
Protected Activity?
Protected activity falls into three general
categories:
1. The Exercise of Legal Rights;
2. Opposition to Unlawful Practices (need only
have a good faith reasonable belief that an act or
policy or practice objected to is unlawful); and
3. Participation in Investigations of Unlawful
Practices.
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The Exercise of Legal Rights
• Taking leave from work for maternity leave.
• Taking time off to care for a seriously ill family
member.
• Disclosing and/or requesting a reasonable
accommodation of a disability.
• Submitting a claim for workers’ compensation benefits.
• Objections to some gender based discriminatory practice
at work or school by employee or student or parent.
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Opposition to Unlawful Practices
• Employee or student complains about harassment or
discrimination based on race, sex, or another
protected category.
• Employee raises concerns about health and safety
violations or violations of other laws.
• Employee opposes what he perceives as
discrimination against a co-worker.
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Opposition to Unlawful Practices
(cont’d)
• Student or employee objects to more favorable
treatment for male athletes or some other
policy or practice that results in gender
discrimination.
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Participation in Investigations
of Unlawful Practices
• Speaking with an investigator.
• Answering questions or submitting a statement
to an administrative agency or tribunal.
• Testifying at trial.
• Providing favorable information for the
complainant.
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What Type of Activity
Is Not Protected?
• Manner in which the person
complains must be reasonable.
• Employee or student cannot cause
disruptions in the workplace or
the educational environment.
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What Type of Notice Is Required?
• No magic words required.
• Must raise the specter of a claim of
unlawful discrimination or other
unlawful activity.
• Objector’s belief must be objectively
reasonable.
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Types of Adverse
Action
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Termination
Suspension/Expulsion
Demotion
Reduction in Benefits
Transfer to Job Employee Cannot Do
Changing Work Hours
Diminishing Work Responsibilities and Duties
Threats
Telling other students to shun a student who had made a complaint
Denying financial aid to a student who has complained about
disability discrimination
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Types of Adverse
Action (cont’d)
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Harassment
Negative Performance Evaluations or Grades
Unwarranted Discipline or Reprimands
Reduction in Pay or Withholding Pay Raise
Withholding or Ceasing Job Training
Giving a Negative Job Reference
Filing a Baseless Counterclaim Against the Plaintiff
Adverse action against someone else, like a family
member who is within the “zone of interests”
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Types of Adverse
Action (cont’d)
• Basically any action that might dissuade a
reasonable person from making or supporting
a charge of discrimination
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Adverse Actions That Are Not
Necessarily “Adverse”
• Unsubstantiated Oral Reprimands
• Shunning By Co-Workers (If Outside Employer's
Control)
• Longer Commute with Same Job Title, Salary, and
Benefits
• Transfer to a Job Employee Does Not Like
• Bad manners/disrespectful behavior not serious
enough to deter a reasonable person
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Proving Causation
• Must show that the adverse action and the protected
activity are not “wholly unrelated.” (some courts and
the EEOC recognize the mixed motive concept where
retaliation just has to be one of the motives for an
adverse action.)
• Must be some awareness of the protected activity on
the part of the decision-maker (beware of the cat’s
paw).
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Proving Causation (cont’d)
• Institution can win by showing that the
adverse action was already ongoing at the time
of the plaintiff's protected activity.
• Cat’s Paw – employer liability based on biased
influence of others on the ultimate decision
maker who may not even know about the
protected activity.
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Red Flags of Retaliation
• Whether there were negative remarks made by a
supervisor or professor or person with power.
• Whether there was heightened scrutiny and
surveillance of the employee or student.
• Whether the institution imposed more severe
penalties or requirements on the plaintiff than
other similarly situated persons.
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Red Flags of Retaliation (cont’d)
• Whether the institution deviated from
established policies.
• Whether someone with an ax to grind
improperly influenced the actual decision
maker.
• Whether the institution has given inconsistent
or false reasons for the adverse action.
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Timing Is Critical
• Institutions must be cautious when taking
adverse action against an employee or student—
even for legitimate reasons—if that person has
recently engaged in protected conduct.
• If an adverse action occurs shortly after the
protected conduct, the institution should take
extra care to avoid the appearance of retaliation.
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Burden Shifting
• Once plaintiff has presented evidence of each
of the three elements of retaliation, the burden
then shifts to the institution to state legitimate,
non-retaliatory reasons for the adverse action.
• If the institution presents such reasons, then
the burden shifts back to the plaintiff to
establish that the stated reasons are pretextual
or false.
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Pretext
A plaintiff can prove pretext by showing that the
asserted reasons are:
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implausible
inconsistent
incoherent
contradictory
unbelievable
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Mixed Motive Defense
• The institution can escape liability if it can
prove that it would have taken the same action
against the person absent any retaliatory
motive. (However be aware of the developing
theory of mixed motive cases.)
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Protecting Your Organization Against
Retaliation Claims
STEPS TO AVOID OR MINIMIZE RETALIATION CLAIMS:
• Maintain and disseminate an explicit anti-retaliation policy in the
policy manuals or handbooks.
• Train all employees about the anti-retaliation policy and explain
complaint or grievance procedures
• Provide special training for supervisors, managers, administrators and
faculty and explain the type of behavior that is unacceptable
• Communicate openly and frequently with employees or students who
have engaged in protected conduct.
• Keep accurate and complete documentation when an employee or
student engages in protected conduct, faces discipline, or complains of
retaliation.
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Protecting Your Organization Against
Retaliation Claims
(cont’d)
• Carefully review with managers, supervisors, faculty and administrators
the reasons for a termination or discipline or suspension or expulsion or
denial of a benefit. Make sure the decision is based on valid reasons
which supervisors or managers or other personnel can clearly articulate.
If based on violations of policies or rules, was the plaintiff aware of the
rule? Is the timing of an action suspiciously close to the time of the
protected activity?
• Review the personnel files or other records prior to discipline or
termination to ensure the proper documentation has been kept with
respect to the performance or behavior problem.
• Review institution handbooks and other published policies and
procedures to be sure that these have been followed prior to action being
taken.
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Protecting Your Organization Against
Retaliation Claims
(cont’d)
• Consider the institution’s past practice with respect to how other persons
who have engaged in similar behavior or who have had similar performance
problems have been treated. This is one time when consistency is not the
hob goblin of small minds. If the treatment of this person is not consistent
with past practices regarding other similar events, be sure that there is some
very good explanation for the deviation based on the seriousness of the
behavior or the consequences to the institution for the problems.
• Beware of the Cat’s Paw – independent review of facts and documents by
the decision-maker.
• Do not be held hostage by fear of litigation.
• Consider how an independent fact finder will judge your story.
• Good Luck.
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www.bakerlaw.com