Employers must be aware of the wide and deep exposure to retaliation claims. Retaliation hit the top of the charts for claims of discrimination. In 2011, it comprised over 37% of all Equal Employment Opportunity Commission (EEOC) claims, compared with race at 35% and gender (28%). The number of retaliation claims have doubled since 2000. There were 37,334 retaliation claims filed with the EEOC in 2011.
Legislative and case law have broadened the scope of retaliation and those protected against retaliation. EEOC’s 2013 agenda includes a focus on retaliation. Case law has lowered the burden for establishing retaliation. There has been a much higher success rate in establishing retaliation and higher damages assessed.
It’s the sue du jour! If an employee can establish that there is a connection between an adverse employment decision and a protected activity; voila an unlawful retaliation claim may be established.
Employers need to be proactive in establishing a defense for these claims. First, make sure the anti-discrimination and anti- harassment policies include a non-retaliation policy. These policies, along with other policies that involve safety and ethics should also contain a complaint procedure which encourages reporting of unlawful conduct without fear of reprisal.
Next, anyone who supervises and/or who has the power to make employment decisions needs training. Not only should their training include anti- harassment, anti- discrimination and basic wage-and-hour laws, but an expanded view of retaliation.
Take every complaint of unlawful conduct seriously and concentrate on the person bringing the issue forth. Provide the individual information about your retaliation policy and offer the individual your assistance should she feel any discomfort or retaliation. Then initiate follow-up sessions with the individual to address the complaint she brought and to check in to assure she has not experienced any incidents which may be considered retaliation. And of course, document all of the interactions.
This activity may be considered being overly protective or paranoid. It is best practice and often business doesn’t have time for such measures. Radio Shack didn’t.
In the recent case of EEOC v. RadioShack, David Nelson complained when his new manager placed him on two performance improvement plans within four months. David had an impeccable record in his 25 year tenure with RadioShack and felt he was being discriminated against because of his age. Before his performance could be re- assessed and just five days after his complaint, David was fired.
The EEOC provided David an additional $101,657 so he wouldn’t be burdened with increased taxes due to his large settlement. His total judgment is $674, 938.
The least a business must do to protect itself is have a policy in place. The next essential step is whenever someone complains of unlawful conduct, experiences a workplace injury or reports the business to an outside agency all subsequent employment decisions about that individual need to be carefully reviewed.
Ideally, human resources, legal counsel or a senior manager not directly involved in the matter can act as the reviewer. The reviewer may look at the following:
– A policy or rule that defines the action as misconduct or deficient performance.
– Does sufficient documentation exist?
– Is the action consistent with previous practice?
– Was the behavior or performance tolerated prior to the protected activity?
All employment decisions regardless of whether a retaliation claim is looming should be well documented and include the reason, the decision maker and the effective date. Informing the employee why the action is taking place should go without saying.
Employment Non- Discrimination Act (ENDA)
ENDA is expected to be re- introduced at any moment in Congress. ENDA amends Title VII of the Civil Rights Act that covers employers with at least 15 employees. ENDA adds the prohibition of discriminating against employees on the basis of sexual orientation or gender identity.
Representative Jared Polis (D– Colorado) stated that he and his staff are working through many advocacy groups to evaluate the impact and determine how to improve ENDA.
Sen. Tammy Baldwin (D- Wisconsin) stated the finishing touches are being put on the bill and anticipated it being introduced soon.
Polis stated that he is firmly committed to assuring the bill is inclusive and will include the transgender community. In 2007, Barney Frank (D– Massachusetts) advanced a version of ENDA that excluded gender identity protections. Frank later came to believe ENDA must include trans-genders.
One argument against ENDA is the legislation would not effectively reduce discrimination. Rice University conducted research and provides empirical evidence to the contrary.
Senior Advisor to the White House, Valerie Jarrett stated that ENDA is a priority, but congressional aides have yet to see much support from the White House since it is so busy with gun control, immigration reform and the budget.