Avoiding Retaliation Suits: Simple Steps to Prevent Litigation

PWW Legal Corner


 
 

Steve WirthDoug WolfbergRyan Stark | | Wednesday, June 27, 2007


Sally, a probationary EMT, comes to you, the service manager, with a complaint about sexual harassment. She claims that one of your best supervisors, Bill, keeps hitting on her and making sexually suggestive comments about her in front of other staff members. You talk with her, but don t take any immediate action on her complaint.

The next thing you know, you find a formal complaint in your mailbox from the Equal Employment Opportunity Commission (EEOC). Sally is alleging discrimination and sexual harassment against the company. You tell Bill about the complaint, and he says the allegations are a bunch of crap. Bill then tells another supervisor that he will make Sally s life miserable for filing the complaint. Bill starts to keep track of everything Sally does wrong in a special notebook. He doesn t keep a similar notebook about male employees, and male employees are not disciplined for the same infractions for which Sally is reprimanded.

After two weeks, Bill tells her she s fired because of performance issues and policy violations. Further investigation reveals that there was no merit to Sally s claim of discrimination and sexual harassment, but she has now filed a second complaint with the EEOC, alleging that she was terminated because she exercised her rights under the law in filing the complaint with EEOC.

Does Sally have a valid legal claim? Probably so.

In addition to protection from a wide range of discriminatory actions, most federal and state discrimination laws also provide protection to employees when adverse action is taken against them for exercising their rights under the law. The number of retaliation suits has been rising at an alarming rate in recent years, and a number of them could have been avoided had the employer handled the situation differently.

According to the most recent statistics from the EEOC, employment retaliation claims have more than doubled from 11,096 in 1992 to 22,740 charges of retaliation received in 2004. Last year, retaliation was the single most common basis for suits filed with the EEOC more common than sexual discrimination, racial discrimination and age discrimination.

Federal law prohibits employers from firing, demoting or otherwise retaliating against an employee. Retaliation occurs when an employer takes an adverse action against an employee because they took part in a legally protected activity, such as filing a formal complaint with the government, participating in a government investigation as a witness or assisting a coworker in filing a complaint. Even simply opposing unlawful practices of an employer may have anti-retaliation protection.

Examples of adverse actions include termination, refusal to hire, denial of promotion, threats, unjustified negative evaluations or references, increased surveillance or salary reduction.

Protected Activity

Employees may oppose a practice they believe to be unlawful discrimination. Telling an employer that you believe they re engaging in prohibited discrimination may be protected activity under the law. This type of opposition is protected from retaliation if it s based on the employee s good-faith belief that the employer is violating anti-discrimination laws and the opposition is reasonable.

Examples include complaining to management about alleged discrimination, threatening to file a charge of discrimination, picketing in opposition to discrimination or refusing to obey an order reasonably believed to be discriminatory. Further, employees engage in protected activity when they participate in an employment discrimination proceeding by filing a charge of employment discrimination or cooperating with an investigation. In the case mentioned above, Sally filed a formal complaint with the EEOC, which is a protected activity.

For a retaliation suit, the law requires an employee to show a causal connection between the adverse employment action and the protected activity. This connection is often shown by merely demonstrating that the adverse action by the employer occurred fairly soon after the employee participated in the protected activity. This subjectivity makes claims often difficult to defend.

In our example, Sally was terminated within two weeks after she filed her discrimination claim with the EEOC timing that could lead to an inference that the filing of the complaint was what prompted her termination. What other facts provide strong circumstantial evidence that the employer unlawfully retaliated against Sally? First, we have the smoking gun comment by Bill who told another supervisor he would make her life miserable. Then, there is the special notebook in which he logs only Sally s infractions, and the fact that male coworkers aren t disciplined for the same infractions.

Eight Simple Rules

For these reasons, it s important to take steps to avoid both the costs and the damage to reputation from retaliation claims.

  1. Handle the allegation in a professional manner and don t take it personally: Employees are well within their rights to file a complaint of discrimination or harassment. By taking the allegation personally, employers are more apt to begin treating the employee differently. This could inadvertently lead to engaging in an adverse action, such as giving the employee a poor evaluation. It s important to treat the employee as if the complaint had never been filed. Handling the allegation in a professional manner includes documentation of all complaints and investigations and reporting them to the proper authority. The employee should be reassured that they will not suffer any retaliation as a result of the complaint.
  2. Maintain confidentiality: Do not discuss the complaint with others in the workplace. The temptation to defend one s reputation to coworkers is great, but it only adds fuel to a potential retaliation suit if the employee finds out.
  3. Obtain legal advice: An experienced employment attorney should be consulted whenever an EMS agency receives a formal complaint of discrimination. It s also important for employers to know the proper way to discipline poor performance should the need arise. Consulting an attorney before you take adverse action against an employee may also help avoid discrimination and retaliation claims.
  4. Don t focus on the validity of the underlying complaint: It doesn t matter that the underlying complaint may turn out to be unwarranted or completely false. Employers can t take action against a complainant if they believe a charge of harassment or discrimination is without merit. Even if the discrimination claim has no merit, an employee may still file a retaliation claim if the employer proceeds to take adverse action against the employee and the employee believes it was a result of the original discrimination complaint.
  5. Objectively document employee performance: Having a policy in place that promotes the evaluation of employee performance may prevent a lot of headaches. If employers must take disciplinary action against an individual who has filed a discrimination or harassment claim, good objective documentation of the deficient performance will aid an employer s argument that the discipline was warranted and not retaliatory. Make sure that the documentation is factual and that the practice of documenting of infractions and other performance issues applies to all employees across the board.
  6. Don t over-document: Thorough documentation is generally a good thing. But overzealous or excessive documentation may give the appearance that an employer is building a case against the employee in order to justify taking an adverse action. Take the example with Sally: The supervisor kept a notebook logging every error she made but did not keep one for other employees. Consistency is the key, and all employees should be treated in the same manner regarding evaluations and documentation of performance.
  7. Develop an anti-retaliation policy: Consider adopting an explicit policy against retaliation. It s important that employees know they have the right to make good-faith complaints without fear of retaliation. Having a written policy will assure them of that. Further, it will reinforce to employees that the practice is prohibited.
  8. Never fire on the spot: Don t let emotion control your actions. It s almost always best to immediately suspend the employee pending investigation when a serious infraction occurs around the time that an employee filed a complaint or reported possible wrongdoing. A suspension allows management the time to conduct an objective investigation, including determining if the supervisor s motive in terminating the employee includes a retaliatory motive. If so, reconsider the action with the goal of making certain that the employee is treated as if they never filed the complaint in the first place.

Virtually all major federal discrimination statutes contain anti-retaliation provisions prohibiting an employer from taking an adverse action against an employee. A few are listed below:

ANTI-RETALIATION LAWS

StatuteAuthorityProtected ActivityAmericans with Disabilities Act (ADA)42 USC 12203Persons who oppose an act of disability discrimination or make a charge or who assist, testify, participate in an investigation, proceeding, or hearing under this act are protected from employer retaliation.Equal Employment Opportunity Act (Title VII)42 USC 2000e-3(a)Employees, applicants, or labor organization members who oppose unlawful employment practices or who make a chare, or who testify, assist, or participate in a proceeding, investigation, or hearing are protected from employer retaliation.Fair Labor Standards Act/Equal Pay Act (FLSA/EPA)29 USC 215(a)(3)Employees who file any complaint or institute or cause to be instituted any proceeding under the FLSA or EPA or testify in any such proceeding, or have served on an industry committee are protected from employer retaliation.False Claims Act (FCA)31 USC 373(h)Employees who act lawfully in furtherance of an action under this section, including investigation for, initiation of, testimony for, or assistance in an action filed by or on behalf of the U.S. are protected from employer retaliation.Family Medical Leave Act (FMLA)29 USC 2615 (a)(2), 2615(b)Persons who file a charge, give information, or testify in an inquiry or proceeding are protected from employer retaliation.Occupational Safety & Health Act (OSHA) & Health Act (OSHA)29 USC 660(c)Employees who file a complaint or who institute or testify in any proceeding under this Act are protected from retaliation under 660(c)(1).Uniformed Services Employment & Reemployment Rights Act (USERRA)38 USC 4311Persons who (1) commence an action to enforce a protection afforded any person under this Act, (2) testify or otherwise made a statement in or in connection with any proceeding under this Act, (3) assist or otherwise participate in an investigation under this Act, or (4) exercise a right provided for in this Act are protected from employer retaliation.



Following these simple, preventive steps will not only decrease potential liability for your EMS agency, but perhaps avoid potential retaliation suits altogether.


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