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Retaliation Claims Often Succeed Where Discrimination Complaints
Fail
Three Steps to Help Protect Your Organization
Employers are discovering a disturbing trend: even
when complaining employees lose their discrimination claims, they
may still win on grounds of illegal retaliation. Follow these three
practical steps to insulate your organization from these claims.
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Several court cases underscore a
disturbing trend: you may be at risk for claims of retaliation in
routine discrimination cases. In these cases, employees are winning
substantial judgments for illegal retaliation, even though they are
losing on their initial claim of discrimination. Generally,
employees may sue if they are adversely affected in retaliation for
exercising a legal right, such as filing a discrimination claim.
Federal discrimination laws specifically prohibit retaliation
against individuals who exercise their rights under the statutes,
including Title VII of the Civil Rights Act, the Americans with
Disabilities Act, and the Age Discrimination in Employment Act. In
addition, most states have discrimination laws that contain similar
protections. Both former and current employees are protected under
federal discrimination laws.
Retaliation Claims Often Succeed Where Discrimination Complaints
Fail
To succeed in a retaliation claim,
employees generally must prove the following three elements:
1. That they engaged in a protected
activity (such as filing a discrimination claim or opposing
discrimination);
2. That they suffered an adverse
employment action (such as termination); and
3. That the protected activity and
the adverse action are connected or linked.
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Increasingly, employees and their
attorneys are including retaliation claims as part of their
underlying strategy in filing discrimination complaints. For
example, in Passantino v. Johnson & Johnson Consumer Products, Inc.,
212 F.3d 493 (9th Cir. 2000), the Ninth Circuit Court of Appeals
upheld the lower court’s $3.1 million verdict for retaliation. The
lower court had determined that although the employer did not
discriminate against the employee initially, it had retaliated
against her after she filed a complaint with the Equal Employment
Opportunity Commission. Similarly, in Pryor v. Seyfarth, Shaw,
Fairweather & Geraldson, 212 F.3d 976 (7th Cir. 2000), the Seventh
Circuit Court of Appeals upheld the dismissal of the employee’s
sexual harassment claim but allowed her to proceed with her
retaliation claim.
Three Steps
to Help Protect Your Organization
To protect against these claims,
you should take the following three steps:
1. Evaluate all adverse employment
decisions before implementing them to make sure that policies and
procedures have been followed consistently and that employees who
have made discrimination claims have not been targeted for
retaliation. For example, in Place v. Abbott Laboratories, 2000 WL
706035 (7th Cir. 2000), the employer was able to prove that a
transfer was properly handled and was not part of a retaliatory
action. In that case, the Seventh Circuit determined that the
employee’s loss of a telephone and a cubicle when the employee was
transferred to a substantially equivalent position was not evidence
of retaliation.
2. Make sure that adverse
employment actions, particularly termination decisions, are
supported by documentation that clearly shows the nondiscriminatory
reasons for the specific action.
3. Implement and enforce clear "no
retaliation" policies, where appropriate (such as part of a
harassment or complaint policy), so that managers and coworkers
understand the seriousness of the issue.
Plaintiffs’ attorneys representing
your employees now routinely add retaliation claims to their laundry
list of allegations in employee discrimination complaints. By taking
these simple steps, you may be able to prevent your organization
from being a victim of this trend. |
Personnel
Policy Service, Inc.
