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Retaliation Claims
What is a Retaliation Claim?
\Re*tal' i*a"tion\,
n. The act of retaliating, or of returning like for like; retribution;
now, specifically, the return of evil for evil; e.g., an eye for an eye,
a tooth for a tooth.
Syn: Requital; reprisal; retribution; punishment.
Webster's Revised Unabridged Dictionary, ©1996, 1998 MICRA, Inc.
Numerous federal and state
statutes and common law causes of action prohibit employers from
retaliating against, or punishing, any employee who participates in
protected activity, Thus, any "negative" conduct toward the employee who
made the first report or complaint, OR any other employee who
participated in the investigation can be fodder for a complaint of
retaliation, could lead to a lawsuit, and may result in judgment against
the employer. Damages can typically include not only actual economic
damages but "compensatory damages" including mental anguish and punitive
damages.
Who is Protected?
Any
employee who:
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complains of
discrimination. on the basis of race, color, religion, sex or national
origin or testifies, assists or participates in any manner in an
investigation, proceeding or hearing relating to a complaint of
discrimination on the basis of race, color, religion, sex or national
origin (Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-2, 42 U.S.C. §2000e-3(a));
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complains of discrimination
on the basis of disability or opposes disability discrimination or
testifies, assists or participates in any manner in an investigation,
proceeding or hearing regarding a claim of disability discrimination
(Americans With Disabilities Act, 42 U.S.C. § 12203 (a);
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complains of age discrimination or
testifies, assists or participates in any manner in an investigation,
proceeding or hearing relating to a complaint of age discrimination
(Age Discrimination in Employment Act, 29 U.S.C. § 623 (d);
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asserts a right to take family or
medical leave under the Family Medical Leave Act (29 U.S.C. § 2615 (a)
(1); 29 U.S.C. § 2615 (a) (2); 29 U.S.C. § 2615 (b);
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files a complaint under the Fair
Labor Standards Act, complaining of, for example, failure to pay
overtime or failure to pay minimum wage (29 U.S.C. § 215 (a) (3));
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complains about or assists others in
complaining about OSHA violations (29 U.S.C. §660 [c]);
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seeks to organize other employees to
be represented by a labor union, or files a complaint or gives
testimony in a claim under the National Labor Relations Act or the
Railway Labor Act (29 U.S.C. §158(a); 45 U.S.C. § 152 Fourth and
Tenth;
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seeks benefits under an employee
benefit plan, or files a claim under such plan (ERISA, 29 U.S.C. §
1140);
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engages in any lawful act taken to
provide information, cause information to be provided (either within
the corporation or to an appropriate outside official), or otherwise
assists in an investigation, regarding conduct which the employee
"reasonably believes" constitutes a violation of criminal provisions
noted in the statute, any SEC rule or regulation, or any provision of
federal law relating to fraud against shareholders (Sarbanes-Oxley
Act, 18 U.S.C. §1514A); or
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complains about conduct prohibited
by state law, or seeks benefits protected by state law (see below).
You should note that it is not only the employee who
raises or files a complaint who is protected, but any employee who
participates in the investigation or resolution is also protected
against retaliation.
Note also that although this list covers at least most
of the federal retaliation laws, it is not an exclusive list. Many
states have statutes or common law causes of action that make other
activities "protected." For example, in addition to its statute that
prohibits retaliation for complaining about unlawful discrimination or
harassment, a Texas statute prohibits retaliation for filing a workers'
compensation claim and Texas common law prohibits retaliation in the
form of termination of an at-will employee for the sole reason that the
employee refused to perform an illegal act.
What Constitutes Retaliation?
In order for conduct to constitute retaliation, it must
result in at least some harm to the protected employee, however slight.
Not surprisingly, different courts have different standards of "harm" to
which the conduct must rise to constitute retaliation sufficient to
support a lawsuit.
Courts have held the following
employment actions and workplace conduct sufficiently harmful to the
protected employee to allow that employee to pursue a retaliation
lawsuit:
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failure to promote;
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refusal to consider paying additional severance pay
after the employee's position was eliminated;
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demotion with no decrease in pay;
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suspension without pay, even though the lost pay was
subsequently reimbursed (loss of use of the funds for the time they
were unpaid);
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lateral transfer to a different position with
different duties;
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co-worker harassment including manure in employee's
parking space, hair in her food, a rubber band shot at her, and
scratches on her car where the employer did nothing to address the
harassment;
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undeserved performance ratings;
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an unfavorable job reference (note that former
employees can raise claims of retaliation for protected activity.);
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supervisors calling employee a "liar," a
"rabble-rouser," and a "troublemaker”;
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ostracism by co-workers including refusal to work with
employee, approved and acquiesced in by employer.
One form of treatment that can lead to a retaliation
charge is selective enforcement of rules. I am aware of more than one
occasion in which supervisors, after learning of an employee
participating in protected activity, adopt an attitude that can best be
characterized as, "So you want to live by the rules--we'll live by the
rules." A workplace that has been somewhat loose or lenient in making
its employees abide by the policies and procedures of their employer is
suddenly transformed to a workplace in which rules are rigidly
enforced-often with regard to only the employee who filed a complaint or
participated in other protected activity. That rigid rule enforcement
could, in turn, lead to lower performance ratings or other negative
result for the employee who engaged in protected activity. BEWARE! Just
because an employer has rules-even written rules-does not mean that
supervisors can selectively enforce the rules without drawing a charge
of retaliation.
Does Participation in a Protected Activity Make an
Employee Immune from Any Personnel Action Forever?
Participation in a protected activity does not make an
employee "untouchable," or ensure that they can never receive legitimate
corrective action from an employer. In order for an employee to support
a claim of retaliation, evidence must exist to demonstrate a causal
connection between his/her participation in the protected activity and
the adverse employment action. However, the type of causal connection
that the employee must establish is not a particularly high standard.
Although the standard may vary some from court to court, most courts
have held that it is not necessary for a plaintiff to prove that his/her
participation in the protected activity was the "sole motivating factor"
that resulted in the adverse employment action. If the adverse
employment action was based in part on the protected activity, or even a
demonstration that the protected activity and the adverse employment
action "were not wholly unrelated" may suffice to allow for trial of
lawsuit alleging retaliation.
Of course, as in a discrimination claim, evidence that
the employee was treated differently than other employees, evidence that
the adverse employment action was taken in contravention of the
organization's policy, or evidence that the employer's reasons for the
adverse employment action were false can all support a retaliation
lawsuit. However, even "close timing" between the adverse employment
action and an employee's participation in protected activity may be
sufficient to support a retaliation claim, "Close timing" does not have
to be a matter of days-courts have held that an adverse employment
action taken two years after the employee engaged in protected activity
was sufficient to support a retaliation lawsuit.
What if the Protected Activity Had No Merit or was
Untrue?
Employees are protected from retaliation for engaging in
protected activity even if it is ultimately decided that their
underlying claim had no merit. For example, if a plaintiff in a lawsuit
alleges sexual harassment and retaliation for making the claim of sexual
harassment, it is quite possible for the jury to decide that although
the plaintiff was not sexually harassed, she was retaliated against for
making the claim, and thus award actual, compensatory and punitive
damages. In fact, some courts have decided that in the context of an
employee engaging in protected activity, even false and malicious
statements by the employee, in certain circumstances, cannot provide the
basis for termination without giving rise to a claim of retaliation.
What's an Employer to Do?
Employers, human resources professionals, managers and
supervisors do well to be aware that regardless of whether an employee's
claim of harassment or discrimination (or other protected activity) is
found to have merit, any negative conduct or adverse employment decision
related to that employee could result in a finding of unlawful
retaliation and an award of damages. Although there is no guaranteed way
to completely avoid a retaliation allegation, here are some "best
practices" to help avoid retaliation liability:
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Ensure policies are adhered to uniformly before a
complaint of illegal behavior occurs. The employer will then have some
recourse to discipline a complaining party when appropriate.
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Keep all claims by employees and resulting
investigations as confidential as possible. Share information about
the claim only on a "need to know" basis. If a decision maker can
truthfully testify that he/she never knew about the protected
activity, it is extremely difficult for the affected employee to prove
a causal connection.
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When an investigation or charge is closed, remain
vigilant. Alert managers and supervisors who know of the protected
activity of the risk of a retaliation claim.
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Take prompt investigatory (and remedial if
appropriate) action if you believe that any adverse treatment or
employment decision may be motivated in any way by an employee's
participation in protected activity.
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If a tough call arises, such as where it appears the
conduct of an employee who has engaged in protected activity
legitimately warrants corrective action or termination, consult with
upper level human resources professionals and legal counsel prior to
implementing the action. Know the risk associated with each option.
By remaining alert, knowledgeable and vigilant, you may
prevent the unpleasant circumstance of being sued for retaliation just
when you thought it was safe to relax and get back to operating the
business.
By Suzanne Stenson, Esq.
Employment Practices Solutions, Inc.
Article Adapted From Westlaw and the Texas Secretary of State
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