According to statistics published by the Equal Employment Opportunity Commission (EEOC), retaliation claims currently outnumber filed charges of discrimination and continue to be the most frequently alleged basis of employment-related claims submitted to the EEOC. In 2015, nearly half of all claims filed with the EEOC included a retaliation claim. Despite such staggering numbers, employers can and should take steps to prevent or limit exposure to claims of retaliation in the workplace. This starts with understanding the basics of retaliation claims and developing internal procedures for recognizing potential issues and responding appropriately.
Sometimes employers mistakenly assume that complaints of retaliation following notice of performance issues are without merit because the employee is simply disgruntled or unmanageable. In such cases, the failure to examine the substance of the alleged retaliation could lead to further exposure and increased legal fees required to defend the claim. Since the best defense to a claim of retaliation is a well-documented and justified non-retaliatory motive, employers should be diligent in their efforts to thoroughly document and manage performance issues as soon as they arise.
What is employment retaliation?
Retaliation occurs when the employer takes unlawful action against an individual as punishment for exercising rights protected under the equal employment opportunity (EEO) laws, federal statute, or an equivalent state law. EEO laws include Title VII of the Civil Rights Act, Equal Pay Act of 1963, the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA). In addition to claims based on EEO violations, other federal or state statutes create a separate cause of action for claims of retaliation. Such federal statutes include the Fair Labor Standards Act (FLSA) and the Family Medical Leave Act (FMLA).
When asserting a claim of employment retaliation, what needs to be proved?
An employment retaliation claim is established by the following elements: (1) The individual engaged in protected activity; (2) the employer took some materially adverse action against the individual; and (3) there is a causal connection between the protected activity and the adverse action. In other words, the adverse action was motivated by retaliation aimed at silencing or punishing the employee for engaging in protected activity.
What is protected activity?
Protected activity includes asserting a complaint of discrimination, participating in an investigation of a complaint of discrimination, or opposing an unlawful employment practice. Courts have also interpreted the applicable statutes to include the following as protected activities:
- Providing financial assistance or supporting a co-worker asserting a charge or complaint of discrimination.
- Inquiring about a post-eligibility maternity leave under the FMLA.
- Lodging internal complaints to human resources manager regarding isolated incidents of discrimination.
- Expressing intention to hire an attorney for to assert a charge of discrimination.
- Requesting an accommodation for a purported disability even if the impairment does not qualify as a disability under the ADA.
What is a materially adverse action?
A materially adverse action is usually some form of punishment or discipline typically resulting in a demotion or termination. However, in some cases, courts have determined that a material adverse action may include a transfer to a remote location or department resulting in isolation of the employee, changing job duties to a position requiring less experience, the denial of training opportunities and refusing to allow intermittent FMLA leave. The greater the impact on an employee’s position, compensation, advancement and benefits, the more likely an adverse action will be considered material.
What does the employer need to demonstrate to establish that there was no retaliation?
The employer must establish with credible evidence that the adverse action taken against the employee was motivated by a legitimate reason other than a retaliatory motive. This includes ensuring that the timing of the adverse action was not suspicious relative to employee’s protected activity and that the employee was not treated differently from other similarly situated employees. Finally, avoiding problems with an ambiguous explanation or justification for the adverse action is crucial to a solid defense.
What steps can an employer take to prevent or limit the frequency of retaliation claims?
It is extremely important for employers to develop internal processes and procedures for handling performance issues, FMLA leave requests and requests for ADA accommodations. Employers are encouraged to consider the following action categories and implement improvements to the internal processes and procedures:
- Provide training for managers and supervisors to recognize protected activity and the importance of responding to FMLA leave and ADA accommodation requests.
- Conduct a review of current company policies applicable to leave requests and revise policies to allow for the potential of unpaid leave.
- Consider separating the management of performance issues from employment issues such as leave requests and internal complaints of discrimination.
- Invest sufficient resources in conducting thorough investigations of employee complaints.
- Carefully consider all disciplinary options and consequences and determine whether other employees have been disciplined in a similar manner for the subject performance issues.
Consult with outside counsel before taking any adverse action against an employee who has previously engaged in protected activity.
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