Avoiding claims of retaliation

Jan. 28, 2015
Claims of retaliation against employers have become one of the fastest growing areas of employment litigation. You need only look at the statistics published by the Equal Employment Opportunity Commission (EEOC) to get a grasp of this bleak trend.

Rebecca Boartfield andTim Twigg

Claims of retaliation against employers have become one of the fastest growing areas of employment litigation. You need only look at the statistics published by the Equal Employment Opportunity Commission (EEOC) to get a grasp of this bleak trend.

In fiscal year (FY) 2011, it was big news when the EEOC reported that for the first time the number of retaliation charges filed with the EEOC exceeded the number of charges filed for discrimination based on disability, religion, race, sex, or age. For the most currently released statistics (FY 2013), we again saw retaliation as the most frequently filed claim for the third year in a row at a staggering 38,539 charges filed. The fact that retaliation charges are higher than the other discrimination charges is becoming the norm.

The monetary benefits the EEOC recovered in FY 2013 for retaliation claims topped $169.4 million. Ouch! Back in 1997, when tracking retaliation charges started, the monetary benefits recovered was a mere $41.7 million. For all statutes, the EEOC recovered $372.1 million, a new record for the agency (up $6.7 million from the year prior).

This begs the question, what is retaliation in the workplace, and how can you protect yourself?

Simply put, employees have a basic right to raise concerns, express opposition to, or complain about practices by the employer that they perceive to be unlawful. Employees can bring forward these concerns either internally or to an outside government-type body.

Regardless of how it's reported, punishing, reprimanding, or otherwise taking "adverse action" against the employee in response to the complaint can constitute retaliation by you. Examples of retaliatory or adverse actions are:

• Terminating an employee who complains about not being paid overtime

• Threatening, providing negative evaluations or references, or denying a promotion to an employee who raises concerns about your OSHA or HIPAA compliance

Individuals who are covered are ones "who have opposed unlawful practices, participated in proceedings, or requested accommodations related to employment discrimination based on race, color, sex, religion, national origin, age, or disability." Furthermore, "individuals who have a close association with someone who has engaged in such protected activity are also covered."

When an employee expresses opposition to an employer's practice that he or she believes is prohibited discrimination, this is called a "protected activity." Protections exist even if the claim made by the employee is later determined to be unfounded. The employee need only make the claim "based on reasonable, good-faith belief that the complained of practice violates anti-discrimination law and the manner of opposition is reasonable" for the retaliation protections to be triggered.

According to the EEOC, here are some examples of protected opposition:

• Complaining to anyone about alleged discrimination against oneself or others

• Threatening to file a charge of discrimination

• Picketing in opposition to discrimination

• Refusing to obey an order reasonably believed to be discriminatory

Employees are also protected if they take part in an employment discrimination proceeding. Examples of participation include:

• Filing a charge of employment discrimination

• Cooperating with an internal investigation of alleged discriminatory practices

• Serving as a witness in an EEO investigation or litigation

Just because the employee is engaged in a protected activity doesn't mean he or she is entirely untouchable. However, extreme caution and care must be taken when issuing disciplinary action or terminating the protected employee in order to avoid potential claims of retaliation. Timing, consistency, and documentation are three key components:

• Timing: ensuring that disciplinary actions, counseling meetings and/or terminations do not appear suspicious (i.e., immediately following protected activity)

• Consistency: ensuring that disciplinary measures and/or termination decisions are the same for all employees in similar situations (i.e., don't fire a protected employee for an infraction that another employee only received warning on)

• Documentation: ensuring that it is objective, factual, and job-related; shows a pattern of behavior and a failure to improve; demonstrates history of poor performance before the protected activity; is cumulative

With today's trends, retaliation is not an issue to be taken lightly. Know and understand what it is and be cognizant of your risks. No one wants to become part of the overwhelming statistics, and you don't have to as long as you're managing your employees appropriately.

Rebecca Boartfield is a human resource compliance consultant with Bent Ericksen & Associates and
Tim Twigg is the president of Bent Ericksen & Associates. For 30 years, the company has been a leading authority in human resource and personnel issues, helping dentists successfully deal with the ever-changing and complex labor laws. To receive a complimentary copy of the company's quarterly newsletter or to learn more about its services, call (800) 679-2760 or visit the website at www.bentericksen.com.

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