What’s the single greatest employment law risk employers are facing?
Retaliation. The EEOC reports that retaliation claims have been on the upswing for 10 years and now sit at the top of the list of employment law matters. Heightening the issue is the fact that an employee can cry retaliation – and the firm can have to pay out a lot of money – even if the complaint supposedly causing the retaliation is found to be groundless.
Almost all offices are at risk. While some types of retaliation claims are limited to employers with a certain number of employers, others apply to all employers, regardless of size, cautions attorneys and mediators Jennifer H. Keaton and Lorene F. Schaeffer, both of One Mediation, an Atlanta company that provides mediation services and neutral investigations for workplace disputes.
The scope of retaliation is vastly wider than most managers realize.
A broadening definition
Retaliation is an adverse action an employer takes against an employee because that person participated in some protected activity such as filing a claim of harassment or complaining about work conditions.
“It’s an intentional act,” Keaton explains. “It’s an effort to dissuade or chill an employee’s willingness to speak up” about some workplace wrongdoing.
And the definition has expanded and continues to expand even further.
Retaliation is obvious when an employer terminates or demotes or assigns somebody to less desirable tasks or hours. It’s also obvious when there’s a negative impact on salary.
But now the courts are saying “that a poor performance review that has no impact on compensation can support a valid retaliation claim.” And that applies even if the employee got a raise.
There’s more. A change in social treatment can be considered retaliation. Excluding an employee from meetings she previously attended or not inviting somebody to lunch as in the past can be considered retaliation. So can a change in communication. Perhaps the boss previously spoke personally with the employee but now sends e-mails instead.
It can even extend to situations where the office gives baby showers or birthday parties to everybody “except So-and-So who recently filed an age discrimination claim.”
A broadening group of victims
Also growing is the scope of who can file a retaliation claim.
In a recent case, an employee claimed he was fired in retaliation for the fact that his fiancé – who worked for the same employer – had earlier filed a discrimination claim.
And he won.
That’s something no one would have thought of earlier, Keaton says. It hasn’t been unknown for a family member to claim retaliation, “but he wasn’t even a family member. He was a fiancé.”
Today, the opinion is that punishment or retaliation can take many forms, and “the Mafia technique” is one of them.
More protected activities too
Along with that, the definition of protected activities has expanded, Schaeffer says.
For example, most administrators are aware that complaining about harassment or overtime is protected and therefore can support a claim of retaliation.
But the complaint may be no more than somebody “grumbling about pay” without ever filing an actual complaint or even notifying the office of it in writing.
If there’s an oral complaint, that’s protected activity, and it can support a claim of retaliation.
The upshot of it all is that whenever there’s any concern that an adverse action against a staffer could be construed as retaliation, the firm has to handle the matter with extreme caution.
Engaging in a protected activity “isn’t an immunity blanket or shield,” Keaton says. People still have to perform their duties and follow procedures and requirements. But before taking any employment-affecting action against someone who has engaged in a protected activity, analyze the whole picture “with a magnifying glass to make sure the action is objective and based on past practices.”
That means asking questions such as
- Are we picking on this person?
- Were we concerned about this person’s performance or behavior before the original complaint was made?
- How have we handled performance issues like this in the past? Are we treating this person the same way we’ve treated everybody else?
That last point is perhaps the most telling, Schaefer says, because in retaliation claims the safety mantra is “business as usual.”
Suppose the office installs a camera to monitor what’s going on and sees that a staffer – who recently complained about sexual harassment – is doing something that warrants firing. If there’s full-time surveillance that monitors everybody equally, that’s fine. But if the office has installed just the one camera and it focuses on the area where that staffer works, “that’s a change in how the workplace is being managed.”
Business as usual can be tough to maintain, she says, “because it’s not the typical natural reaction of most human beings.” No attorney or administrator wants to smile and be gracious to somebody who has filed a claim against the firm. But to prevent a retaliation claim, it’s a necessity.
Put the partners on alert
Keep the partners and supervisors updated on any protected activities that occur in the office, Keaton says.
When somebody makes a complaint or files an actual claim, tell them what has happened and explain the importance of being totally objective with that staffer. Explain too that any adverse action taken against the staffer has to be a provable business necessity.
In addition, it’s essential that no attorney or supervisor who was the target of a complaint or who has been involved in the investigation participates in decisions affecting the staffer involved.
Decisions have to be made at arm’s length, she says, preferably by a neutral party such as an HR person.
If the office is small to the point that it’s not possible to do that, bring in a consultant or an attorney to review the situation and decide whether the action being taken is indeed based on objective criteria.
And even then, keep in mind that the firm may have to prove the objectivity of the decision – a job that is becoming more and more difficult.
In the past, when discipline was being taken against a complainer, the employer could simply hand the information over to the outsider, and because that person didn’t have a dog in the fight, the decision was considered fair.
Now, however, even that can come under scrutiny, the argument being that the person who prepared the information could have slanted it. Thus, there needs to be unquestionable proof that the decision was not and could not have been affected by the employee’s earlier protected action.
And, of course, set a policy
It goes without saying that there needs to be a retaliation policy in place, Keaton adds.
The policy should not only prohibit retaliation but should say further that anybody who suspects retaliation, whether personal or against somebody else, should report it to the person in the office who is in charge of investigations.