Back to Basics: A Retaliation Refresher

In this, our fifth and final installment of Back to Basics, we outline an anti-retaliation checklist.

Case in Point – when supervisors sat down with Frank Brown to tell him he couldn’t take leave to attend a doctor’s appointment with his wife during the workday, he yelled and banged his fists on the table, court documents tell us. His employer, ScriptPro, fired him two days later.

Brown then sued ScriptPro, claiming it “interfered with the exercise of his rights under the [Family Medical Leave Act] and terminated him in retaliation for exercising those rights” (Brown v. ScriptPro, LLC,  No. 11-3293 (10th Cir. Nov. 27, 2012)).

In its opinion granting ScriptPro summary judgment, the 10th U.S. Circuit Court of Appeals revealed that ScriptPro had addressed Brown’s poor performance — the stated reason for his termination — long before the drama surrounding his FMLA request surfaced. In fact, the court focused on the fact that ScriptPro issued Brown several performance reviews addressing his behavior, which included making co-workers uncomfortable by staring at them as they passed his cubicle, fighting loudly with his wife on the phone during work hours and interrupting conversations and starting arguments around the office.

This case highlights how courts will deal with retaliation claims. Here, the 10th Circuit focused on the context of the claim, as established by documentation, prior performance management and consistent management practices.

Employers will want to take note — retaliation claims come up more than any other type of discrimination claim according to the U.S. Equal Employment Opportunity Commission (EEOC). Nine out of 10 times, when you get an EEOC claim, they’re going to tack on a retaliation claim.

The Road to Retaliation

For an employer to retaliate against an employee, the worker must first engage in some kind of protected activity. Protected activity, generally speaking, takes the form of opposition to discrimination or harassment.

An employee may complain about experiencing discrimination against themselves or complain about a colleague experiencing discrimination. An employee could participate in protected activity also by just threatening to complain. When an employee refuses to obey orders they believe to be discriminatory, they participate in protected activity. The same goes when they resist sexual advances from a co-worker or supervisor, or when they intervene to protect someone else from sexual harassment.

Workers carry out protected activity when participating in an internal investigation or when agreeing to be a witness in the deposition of an EEOC charge. Employees participate in protected activity when requesting and taking FMLA leave, asking for an accommodation or complaining about their compensation.

Because there is a multitude of ways to participate in protected activity, there are many opportunities for employers to retaliate against workers. Multiple laws restrict employers from doing so. Name the [employment] law, and it has a retaliation provision. You’re not going to find an employment law that doesn’t have a retaliation provision.

Adverse Employment Actions and the “But For” Retaliation Cause

An employer commits retaliation by carrying out an adverse action against an employee who has been involved in protected activity.

An adverse employment action is “a tangible change in working conditions” and must produce a “material employment disadvantage,”, according to the 8th U.S. Circuit Court of AppealsRetaliatory adverse action is slightly different, however. A retaliatory adverse action must reasonably or likely deter a worker from making a discrimination claim.

It’s also important HR professionals understand that the retaliatory adverse action must be “but for” cause of retaliation, as the U.S. Supreme Court ruled in a 2013 decision, University of Texas Southwestern Medical Ctr. v. Nassar. In this ruling, the High Court concluded that workers claiming retaliation under Title VII of the Civil Rights Act of 1964 must prove “that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer,” it said in its opinion.

“Retaliation Red Flags” and Avoiding Adverse Action

As employers attempt to avoid retaliation charges they may want to screen their managers overseeing employees involved in protected activity for “retaliation red flags” such as:

  • Increased supervision or monitoring
  • New performance issues
  • Higher standards or expectations
  • Supervisor complaints about employee

This doesn’t mean employers must exempt workers involved in protected activity from warranted discipline, but they should be careful. The timing of employment actions, verbal or written statements, similarly situated employees and inconsistent action from different departments and managers can prove illegal causal connection. Even in this instance, however, the employee still has to prove ‘but for’ this reason.

Employers can ward off retaliation claims through consistency. The number one deterrent to a retaliation claim is timely and consistent discipline. Timely and consistent discipline is critical.

HR’s Anti-Retaliation To-Do List:

Publicize and implement a retaliation policy: You’ve got to have a policy on retaliation that’s well-publicized. Specifically, employers should have a standalone policy forbidding managers from retaliating against employees for carrying out protected activity. It’s best if workplaces combine such a policy with multiple avenues for employees to complain about discrimination and retaliation.

Document retaliation-related activity: Employers need to document all instances of complaints, discipline, and follow-up. It’s important for HR to make sure they have documentation to support discipline decisions that are non-privileged.

Highlight retaliation in training:  We always encourage employers not to bury the subject of retaliation in their training agendas.

Encourage complaints: Employers should always encourage employees to complain. It can be a good thing when an employee brings something forward.

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