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Susan, the HR Director of Smith Corp., has just received a
complaint of gender discrimination from Joann.; Susan has heard
that retaliation complaints often accompany such complaints, and is
concerned about preventing a retaliation claim. What can Susan do
to prevent a retaliation claim against Smith Corp.?
In 2011, retaliation was the number one claim raised at the EEOC
for the second year in a row, so employers should be concerned
about taking proactive steps to minimize their risk of these
claims. The reasons for the expansion of retaliation claims include
that they are typically easier to prove than the underlying claim,
retaliation claims can be successful even if the underlying claim
is not proven, more employees have standing to bring these claims,
and managers often do not fully understand retaliation.&
Retaliation occurs when an employee engages in protected
activity, subsequently experiences an adverse employment action,
and there is a direct relationship between the two. Often timing is
the most critical factor in determining if retaliation did in fact
occur. For example, if an employee raises concerns to a supervisor
that workplace conditions are unsafe or unlawful and that employee
is demoted within a short period of time, it will be very difficult
for an employer to defend against a claim of retaliation due to the
timing of the complaint and subsequent demotion.
Given the above definition of retaliation, it is critical for
employers, as well as their managers, to understand what
constitutes a "protected activity" as well as an
"adverse employment action." Some instances of protected
activity are clearly apparent to employers, including activities
enforcing an employee's rights such as opposing unlawful
conduct or making a complaint. However, protection from retaliation
claims extends to individuals who participate in internal
investigations, even if they did not raise the complaint. Employers
should also know that oral complaints are sufficient to constitute
protected activity.
The term "adverse employment action" has been defined
very broadly by the United States Supreme Court to mean any conduct
that could dissuade an employee from making or supporting a claim.
Again, the term includes clearly apparent adverse actions,
including termination and/or demotion, but can also encompass a
wide variety of less obvious actions and behavior. Examples
include being ostracized from meetings and being treated
differently by other employees and supervisors.
Retaliation can also occur with employees who are the individual
who engaged in protected activity. The United States Supreme Court
has found that an employee who was terminated due to his
fiancée's protected activity may raise a retaliation
complaint because employer may not retaliate against a third party
employee if they are in the "zone of interest" of the
employee who engaged in the protected activity. Employers must be
careful when taking an adverse employment action against an
employee to be sure that a family member, or possibly even close
friend, has not recently engaged in protected activity.
Given this information, what can employers do to protect
themselves from retaliation claims when responding to protected
activity? First, employers should have a stand alone retaliation
policy in their employee handbook to provide employees with the
information they need to understand retaliation and to show that
the company is serious about preventing it. All employees
should undergo training explaining retaliation and the
company's policy, and managers and supervisors should undergo
additional training so they fully understand what actions
constitute retaliation. Often even the best intentioned actions to
separate complainants and alleged harassers can give rise to a
retaliation claim, and managers must understand that. Once an
employer begins an investigation, all complainants and witnesses
should be told explicitly that they cannot be retaliated against
and given the opportunity to come to HR or other appropriate
personnel with any concerns about retaliation. Finally, HR or the
individual conducting an investigation should follow up with the
complainant to make sure he or she is not experiencing harassment.
While these actions are not all-encompassing, these steps alone
will go a long way in protecting an employer from a retaliation
claim. Employers need to take affirmative steps to protect
themselves and their employees, which may include seeking the
assistance of an outside attorney and/or HR consultant to assist
them with these steps.
Katie Kiernan Marble is an attorney in the
Litigation Department at the law firm of McLane, Graf, Raulerson
& Middleton, Professional Association.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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