December 29, 2015
The Equal Employment Opportunity Commission recently reported that retaliation charges accounted for the highest percentage of private sector discrimination charges filed with the Commission in 2011, the most recent. (The total number of private sector EEOC charges for that year was 99,947—a record high.)
The number of retaliation charges is not surprising. Many people believe that retaliation protections are the most important part of all employee protection statutes. Unless employees feel free to complain about alleged violations, these laws are not worth the paper they are printed on. A statute that is not invoked because of fear of reprisal does not have any real impact on the workplace and on the people who work there.
In recent years, the U.S. Supreme Court has recognized this important fact. Although the Court has been “business friendly” in many respects, it has been markedly receptive to employee claims of retaliation. Other courts also have been receptive to these claims. Retaliation laws have evolved into several areas:
• Is an oral complaint protected?
• Are internal employee complaints protected? Internal complaints are those made to company officials rather than to a government agency or a court.
• What kinds of retaliatory treatment are considered unlawful?
• How clearly must the employee complaint be voiced in order for it to be protected?
• Who is protected from retaliation?
• If the statute in question prohibits discrimination but does not have an explicit anti-retaliation provision, can such a provision nonetheless be inferred?
Tips to Prevent Retailiation Claims
1. Human Resources professionals will undoubtedly be faced with the prospect of firing an employee who, at some time in the past, has filed a Charge or complained about discriminatory conduct. Focus on how the employee’s performance/conduct was disruptive to the business and how the performance/conduct interfered with the performance of the employee’s job. Be specific. If the facts cannot be convincingly articulated, you should rethink the decision.
2. On "concerted activity" issues, distinguish between activity on behalf of other employees (that may be protected) and activity conducted in their own interest (not protected).
3. Always look at the timing, the employee’s performance history, whether your business is following its policies and procedures, and whether there are comparative employees who have committed the same conduct and have been discharged or otherwise disciplined. Always administer consistent discipline.
4. If you intend to fire or otherwise discipline an employee who has made an allegation or claim of harassment or discrimination, look carefully at who the ultimate decision-maker is. Likewise, be certain the ultimate decision-maker has independently investigated and can support the reasons for the disciplinary action to be taken. In other words, do whatever you can to remove “retaliatory intent.”
This information was gathered from materials presented at our Texas Employment Law Update seminar.