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 2

The High Cost…

         Compensatory damages Punitive damages Personal liability in some jurisdictions Reinstatement Injunctive relief Litigation costs Attorneys ’ Fees Morale and Turnover Bad press 3

The High Cost…

 Relatively easy cases to prove  Two shots to win a weak case  No need to prove underlying discrimination  Very broad protection 4

Some of the Laws…

 Title VII   Age Discrimination in Employment Act (federal and non-federal sector provisions)  42 U.S.C. § 1981 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 5

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 practices forbidden under this part or because the person has

opposed filed a

any

complaint, testified, or assisted

any proceeding under this part.

” in 6

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 7

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) 8

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 10

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 11

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 12

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 or religious Refusing to obey an order 15

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 16

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.

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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 of his disability.

’

t receive a promotion because The position required a law license and Graham did not have one.

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Beware of Vague Opposition

 Employee does not have to explicitly inform employer of opposition to a particular practice   see 1028 Yanowitz v. L'Oreal USA, Inc ., (2005) 36 Cal.4

th Conduct alone can be opposition   Look at totality of circumstances Read between the lines 21

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 ” 25

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 26

Materially Adverse Action

 The anti-retaliation provision of Title VII  “ extends beyond workplace-related or employment-related retaliatory acts and harm ” 27

Materially Adverse Action

        Refusal to hire Denial of job benefits Denial of promotion Demotion Suspension Reprimands Negative job reference Termination 28

Materially Adverse Action

     Threats Negative evaluations Harassment Solicitation of negative comments Refusing to give employee opportunity to respond to adverse employment action 29

Materially Adverse Action

 Loading an employee down with additional work  Subjecting employee to extra scrutiny in response to a complaint 30

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. 35

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 37

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 opportunities ’ s performance or future job 39

    Listen to complainers  ASK employees why they are refusing to or begrudgingly follows orders Lessons from Crawford:   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 40

   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 41

    Limit those who “ need to know ” engaged in protected activity FOLLOW-UP IS KEY!!!

employee Beware of unjustified negative job references DOCUMENT, DOCUMENT, DOCUMENT 42

  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? 43

Thank you !

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This presentation is intended solely to provide general information and does not constitute legal advice. Attendance at the presentation or later review of these printed materials does not create an attorney-client relationship with the presenter(s). You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances.

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