In 2015, employees filed 39,757 charges of unlawful retaliation, which is 44.5 percent of 89,385 charges of workplace discrimination filed with the U.S. Equal Employment Opportunity Commission (EEOC) last year. Retaliation charges increased by nearly 5 percent over the prior year and continues to be the leading concern raised by workers across the country, followed by race discrimination (34.7 percent) and disability discrimination (30.2 percent). The data reflects a continuing trend: the number of retaliation claims filed with the EEOC last year is more than twice the number filed in 2000 (19,694 claims).
The same is true in California, where employees filed 14,043 complaints of retaliation with the Department of Fair Employment and Housing (DHEH), which constitutes 21 percent of the 66,289 complaints received by that agency in 2015. As in the United States generally, retaliation charges topped the complaints list by a large margin; disability discrimination (8,507 complaints) and sex-gender (5,832 complaints) rounded out the top three.
Setting a Low Bar
Federal and state employment laws make it illegal to fire, demote, harass or otherwise take adverse action against applicants or employees because they complained to their employer about discrimination on the job, including making a good faith complaint of sexual or other kinds of harassment, filed a charge of discrimination or harassment with an enforcement agency, participated in an employment discrimination proceeding (e.g., company investigation or lawsuit) or engaged in any other “protected activity” such as whistleblowing.
Courts have lowered the bar for filing, and expanded the parameters of, retaliation claims in recent years. For example, in 2011, the U.S. Supreme Court unanimously held that an employee who has not engaged in protected activity is permitted to proceed with a retaliation claim under Title VII of the Civil Rights Act of 1964 (Title VII)—where the employee is subjected to retaliation due to protected activity engaged in by another individual and is in “the zone of interests protected by Title VII.”
In Burlington Northern & Santa Fe Railroad v. White (2006), the U.S. Supreme Court ruled that Title VII’s anti-retaliation provision prohibits employer action that “well might have dissuaded a reasonable worker from making or supporting a discrimination charge.” This lowered the standard of harm that must be proven by the plaintiff, and made it easier to succeed on a retaliation claim.
In Thompson v. North American Stainless, L.P., the petitioner employee was fired shortly after his fiancé, who worked for the same employer, filed a charge of sex discrimination against her employer with the EEOC. The Supreme Court, applying Burlington, held that the plaintiff may sue under Title VII for third-party retaliation. According to the high court, the employee could be considered an “aggrieved person” under Title VII because he was “well within the zone of interests sought to be protected by Title VII.”
In Kasten v. Saint-Gobain Performance Plastics Corp., the Supreme Court overruled a federal appeals court in holding that the Fair Labor Standards Act (FLSA) protects workers who make oral complaints about wage and hour violations from retaliation. In Kasten, the petitioner employee was terminated for failing to follow the company’s policy for punching in on a time clock. The petitioner filed suit alleging he was discharged after making multiple verbal complaints to his supervisors about the illegal location of the company’s time clocks. According to his brief, the clocks’ location prevented the employees from being compensated for “time spent donning and doffing their protective gear.” While the lower courts found that complaints under the FLSA had to be in writing, the Supreme Court held that any complaint, whether stated orally or in writing, that puts the employer on notice of the nature of the employee’s complaint will suffice under the FLSA.
Avoiding Retaliation Claims
Retaliation cases are on the rise because the courts have made it easier than ever to prevail on retaliation claims. Furthermore, juries have an inherent sense of abhorring unfairness – they want to punish employers who they perceive to have unfairly treated employees after making a reasonable complaint. Fortunately there are steps that employers can take now to avoid such claims in the future.
• Have a clearly written Anti-Harassment Policy. The policy should generally have the following points:
– A clear and unambiguous statement that retaliation of any kind is not permitted.
– Describes, as clearly as possible, the types of impermissible conduct (e.g., firing, demoting, harassing, marginalizing or otherwise taking adverse action) against applicants or employees because they have complained.
– Contains a grievance procedure, including naming the positions in the company to whom the employee can report a claim of retaliation.
– Individuals that do complain should receive a written acknowledgement that the complaint has been received, the date it was received, and the next steps.
• Conduct a prompt, thorough and fair investigation
– Remind managers, supervisors and witnesses that anyone who participates in an investigation is protected from retaliation.
– Once the investigation is completed, communicate results of the investigation to the complainant.
– Take fair and effective remedial measures based on the information gathered, but be sure to carefully review any discipline before imposing it to ensure that it is consistent with company policy and past practice.
– Ensure that management receives appropriate training on and understands the anti-harassment policy. This includes ensuring they understand who is protected from retaliation and what may constitute retaliatory conduct.
• Always consult with HR, and if there is any doubt, with inside/outside counsel.