YOU’RE GOING TO PAY FOR THAT

Well it must be true.  We have been saying for a while that retaliation claims are on the rise.  I’ve even pointed to these statistics when training managers and HR professionals.  For example, in 1999 25% of the 77,444 charges of discrimination filed with the EEOC had a retaliation claim included.  In 2008, 95,402 charges of discrimination were filed and 35% of them had a retaliation component.  But now The Wall Street Journal is saying it too.  In fact, according to The Wall Street Journal, if you take a look back to 1992 when the government began tracking these statistics, you would see that retaliation complaints have just about tripled.  (See “Employee Retaliation Claims Rise” C. Tuna, The Wall Street Journal, pg. B.1. October 5, 2009.)

                        So, what exactly is a retaliation claim?  Well, remember a while ago when we talked about how to lose an ADA case even when the plaintiff does not have a disability?  Well, this is sort of the same thing, a whole new way to lose a discrimination suit even when you didn’t discriminate.

                        In simple terms, retaliation occurs when you do something bad to someone who is exercising his or her rights under one of the civil rights laws—Title VII, the ADEA, the ADA, you know, one of those.  A bunch of recent court decisions have made it a lot easier for plaintiffs to prove that you did something bad and have really made it a lot easier for the plaintiff to prove that the something you did was “bad.”  “The Supreme Court in Burlington Northern v White eliminated the ‘adverse employment action’ requirement, lowering the bar for plaintiffs who make retaliation claims. Instead, the Supreme Court held that a retaliation claim could be supported if the employer engaged in any act that might dissuade a reasonable worker from making or supporting a discrimination complaint.” 

See http://www.wnj.com/publications/detail.aspx?pub=383#lower_performance_evaluation

                        That’s right.  Take some action against someone who files a complaint and if a “reasonable person” thinks it would keep the next guy from filing a charge of discrimination and you have retaliated.  Who you ask is this “reasonable person.”  We can spend a lot of time discussing this nice legal fiction but what it boils down to is the jury is the reasonable person. 

                       So how do you prevent these claims?  You don’t. What you have to do is set yourself up so if you do get a charge of retaliation, you can defend yourself and ultimately win.  If one of your employees files a charge of discrimination or participates in an investigation of a complaint, be sure to treat them just like you would treat an employee who did not file a charge or participate in that investigation.  And train your managers to do the same.  Oh, yea, if you do need to do something to an employee who has filed a charge, even if it is something that seems completely fair, you might want to give us a call before you do.  Remember, all you have to do to lose is do something that would make a reasonable person not file a charge of discrimination