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HR MATTERS E-TIPS
THIS WEEK'S E-TIP: Discipline and Retaliation Claims
Published by Personnel Policy Service, Inc.
"Your Policy and Compliance Experts Since 1972"
 
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THIS WEEK'S E-TIP: Discipline and Retaliation Claims

Retaliation claims now represent almost a third of the suits filed with the
EEOC. Employees often allege retaliation when they are disciplined
after filing discrimination or other complaints. Find out what the courts
have said and how you can protect your organization.
Also, news on I-9 requirements for Hurricane Katrina victims.
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THIS WEEK'S E-TIP: Discipline and Retaliation Claims

Over the past few years, retaliation claims against employers have been
on the rise. These claims typically allege that an employer took some
adverse action against an employee because the employee exercised a
legal right, such as filing a discrimination claim. To make matters worse,
courts often rule in favor of employees in the retaliation part of their
lawsuits, even when the underlying discrimination claim is dismissed.

Unfortunately, the simple act of disciplining an employee can trigger a
retaliation claim. Employees may claim retaliation under state or federal
law whenever they believe they have been unfairly disciplined as a result
of filing a discrimination claim, reporting unlawful employment practices,
or participating in an investigation, proceeding, or hearing. So, you need
to make sure that you understand how courts treat these claims and the
steps you can take to prevent them.

* The Legal Case for Retaliation *

Federal discrimination laws prohibit retaliation against individuals who
oppose practices made unlawful by those statutes, including Title VII of
the Civil Rights Act, the Americans with Disabilities Act, and the Age
Discrimination in Employment Act. In addition, many other federal and
state laws also contain anti-retaliation provisions protecting employees
who report their employer for, or complain about, what they reasonably
believe to be illegal or unethical practices. Employees who engage in
protected activity under these laws are commonly referred to as
"whistleblowers."

To succeed in a retaliation claim, employees generally must establish the
following three facts: (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 unfair disciplinary
action or termination); and (3) that there is an underlying connection
between the protected activity and the adverse action.

* Retaliation Claims on the Rise *

Increasingly, employees and their attorneys are including retaliation
claims as part of their fundamental strategy in filing discrimination
complaints. According to the Equal Employment Opportunity
Commission's (EEOC) enforcement and litigation statistics, retaliation
claims against employers have increased noticeably over the past
several years. In just 12 years, retaliation claims have doubled, from
11,096 claims filed in 1992 (representing 15.3% of the EEOC's total
claims) to 22,740 in 2004 (28.6% of the total).

What is behind this increase? The most likely explanation is the fact that
employees and their attorneys are now regularly tacking on retaliation
claims as part of their strategy to raise the legal stakes for employers.
In addition, they have learned that they can often win the retaliation
claims even if they lose the underlying discrimination claims.

For example, in Passantino v. Johnson & Johnson Consumer Products,
Inc., 212 F.3d 493 (9th Cir. 2000), the Ninth Circuit upheld a 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 after she filed a complaint with
the EEOC.

Similarly, in Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183 (3rd
Cir. 2003), the Third Circuit determined that a customer service
representative, who could not prove that she had a covered disability
under the ADA, could still proceed with her retaliation claim. She had
been fired after she sought accommodations and filed an EEOC charge.

* Discipline Fuels Retaliation Claims *

Retaliation claims often crop up when an employee is subjected to some
sort of adverse employment action after filing, or participating in, a
discrimination claim or a whistleblower action. In particular,
disciplinary action raises a red flag if it follows too closely in time
to an employee's protected activity. Consider these cases:

-- A police officer was allowed to proceed with his retaliation claim
because he was investigated, transferred, passed over for promotion,
and negatively evaluated after he complained he was being
discriminated against because of his disability. (Treglia v. Town of
Manlius, 313 F.3d 713 (2d Cir. 2002).)

-- In Texas, a nurse whose promotion was revoked after she testified at
a coworker's grievance hearing was allowed to pursue a retaliation claim.
(Evans v. City of Houston, 246 F.3d 344 (5th Cir. 2001).)

-- A store clerk, who had never been reprimanded, was given the green
light for a retaliation claim because, within days of filing an EEOC
charge, she was listed as a "no show" on a scheduled day off, received
two written reprimands and a suspension, and was the target of a
campaign soliciting negative comments about her. (Wideman v. Wal-
Mart Stores, Inc., 141 F.3d 1453 (11th Cir. 1998).)
 
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* Four Tips to Prevent Retaliation Lawsuits *

How can you protect against these claims? Consider the following four
suggestions:

1. Make sure that managers follow your discipline procedures
consistently. Managers should be required to consider their motives
before disciplining an employee and should be able to show they are
treating the employee fairly and consistently. They should not appear to
target anyone who has made a discrimination claim or participated in a
protected activity.

2. Document discipline decisions to show the nondiscriminatory reasons
for the actions. You should provide an accurate accounting of the facts
behind the decision and any steps taken prior to the disciplinary action
(such as counseling sessions and warnings to improve). These records
can be a critical last line of defense if you have to justify your actions
or defend a lawsuit.

3. Review disciplinary actions before implementing them. In particular,
when the employee has been involved in a discrimination claim or is
otherwise protected from retaliation, the disciplinary action should be
reviewed before finalization by the HR department or someone at least
one level of management above the immediate supervisor.

4. Implement and enforce clear "no retaliation" policies so that managers
and coworkers understand the seriousness of the issue. For example,
harassment, equal employment opportunity, and complaint policies
should state plainly that you prohibit retaliation against employees who
make complaints or provide information about discrimination or other
protected activity. In addition, managers should be trained to know what
actions can be interpreted as retaliatory.

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 improve
your defenses and the odds of winning if your organization gets caught in
this trend. And, just as importantly, you are reducing the chances
employees will feel unfairly treated in the first place.
 
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Subscribers to the Personnel Policy Manual and HR Policy Answers on
CD
can find more information on retaliation claims as the result of
disciplinary action in Disciplinary Procedure, Chapter 808, note 16.

Not a subscriber? You can get our "Behavior of Employees" Policy
free-of-charge. Go to: http://www.ppspublishers.com/dcbehave.htm.
 
If you have any questions, please call us at 1-800-437-3735. We'll be
happy to help you.
 
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YOU CAN TRUST PPS
Information provided in HR Matters E-Tips is researched and reviewed
by the HR experts at Personnel Policy Service as well as employment
law attorneys. However, it is not intended as legal advice. Readers are
encouraged to seek appropriate legal or other professional advice.

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Service, Inc., to request permission. You can contact her by email at
editor@ppspublishers.com or by telephone at 1-800-437-3735.

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Remember, too, we encourage you to pass along any issue of the E-Tips
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