An Eye for an Eye

During the past couple months, the Seventh U.S. Circuit Court of Appeals (the federal court of appeals that covers Wisconsin) has decided at least 10 cases involving employer retaliation. Whether filed separately or in conjunction with discrimination claims, retaliation claims continue to plague employers. They are costly and frequently survive requests for dismissal. Juries tend to be unsympathetic to an employer if they believe an employee was retaliated against for exercising her rights. There are several ways to protect against retaliation claims. Read on to learn more.

Case scenarios

• Case #1. You employ Danielle as a housekeeper at your nursing home. She is young and attractive, and in the past, several nursing home residents have made inappropriate sexual comments to her. Although she reported the incidents to management, a resident recently groped her. She reported the resident’s conduct and temporarily walked off the job because she was unhappy with your proposal on how to address the behavior. You ultimately tell her that it’s best for everyone involved if she and the nursing home part ways. Danielle sues you for sexual harassment and retaliatory discharge. After an expensive trial, the jury awards her $65,000 in damages plus her attorneys’ fees. You appeal, but the Seventh Circuit agrees with the trial court and upholds the jury’s verdict. Pickett v. Sheridan Health Care Center, No. 09-3028 (7th Cir., 6/25/10).
• Case #2. You own a private security company and hire Claudette to work for you as a security officer. You assign her to provide security at a housing complex, working the late evening/early morning shift. She has a teenage daughter and requests to be assigned to another facility with earlier hours so she can be at home with her daughter at night, and you approve the request for reassignment. Nevertheless, she repeatedly complains to you about pay issues, including not being paid the same as male officers, not being paid for all the work she performs, not being paid on time, and her paycheck sometimes bouncing. Claudette claims she was retaliated against for raising concerns about equal pay. She contends that the retaliation included threats to send her back to the first assignment with less favorable hours. The trial court finds in the employer’s favor, and the court of appeals agrees, finding that the sole threat to return her to the first position was not an adverse employment action. Thus, Claudette is unable to establish a retaliation claim. Goodman v. National Security Agency Inc., No. 09-2043 (7th Cir., 9/3/10).
• Case #3. You employ Leonard as a janitor. He is Native American and outspoken about Native American issues. He seeks several promotions but isn’t hired. He then sues you, claiming that your refusal to promote him is in retaliation for his support of Native American issues both outside and within the workplace. The trial court throws out his case, but on appeal, the Seventh Circuit reverses, finding that there is a question for a jury to decide regarding the claimed retaliatory conduct. The Seventh Circuit sends the case back to the trial court for an expensive trial. Leonard v. Eastern Illinois Univ., No. 09-2443 (7th Cir., 5/26/10)

Employment retaliation fundamentals
These are just three examples of retaliation claims recently heard by the Seventh Circuit. Retaliation cases continue to be a major form of employment claims against employers, and they are often accompanied by other claims. For instance, an employee who claims she was sexually harassed may add a retaliation claim based on how she was treated after complaining of the harassment. Or maybe an employee claims he was denied a promotion because of his race and then terminated after he raised concerns of discrimination. What about an employee who requests an accommodation for a disability and is then demoted, allegedly in retaliation for seeking a reasonable accommodation?

The recent flurry of retaliation cases heard by the Seventh Circuit is proof that employees are getting retaliation claims before juries. It’s not uncommon for employers to win on the underlying discrimination claim but then lose on the retaliation claim.

Nearly every federal and state law prohibiting discrimination in employment also prohibits you from retaliating against an employee who exercises her rights under those laws. There are two primary types of retaliation that are outlawed by most antidiscrimination laws:

1. Taking an adverse action against an employee who opposes discrimination in the workplace, which can include raising concerns of discrimination through the employer’s formal or informal grievance process; and
2. Taking an adverse action against an employee who participates in a complaint process provided by law — e.g., an employee who files a complaint with the Equal Employment Opportunity Commission or testifies at an Equal Rights Division hearing on behalf of another employee.

Remedies for retaliation can include back pay and lost benefits as well as reinstatement when the claimed retaliatory action is termination or constructive discharge. Many antiretaliation laws also permit employees to recover damages for emotional distress and humiliation as well as punitive damages, even when the underlying discrimination law doesn’t allow recovery of such damages.

Nearly all laws that prohibit retaliation allow the prevailing employee to be awarded attorneys’ fees and court costs incurred in the pursuing claim. Attorneys’ fees and costs often exceed $100,000 — excluding the attorneys’ fees and costs that the employer must pay its own counsel.

An ounce of prevention
Accusations that a supervisor or manager has discriminated against or harassed an employee can result in an emotional reaction by the accused. It’s critical that you diffuse that anger. You should make it clear to both the complaining employee and the accused that your company takes employee concerns of discrimination seriously and will fairly investigate the matter. Inform all employees who are involved in an investigation, including witnesses, of your policy prohibiting retaliation. If necessary, separate the accused from the accuser — but not in a way that adversely affects the complaining employee’s work conditions. Address concerns promptly and compassionately.

Good documentation is generally an employer’s best friend. Just because an employee raises a concern about discrimination in the workplace, whether perceived or real, it doesn’t entitle her to lifetime employment at your company if her performance is deficient. You should have an evaluation mechanism for regularly evaluating employee performance. Be fair but honest in your assessment of how an employee is performing and any areas in which improvement is needed.

Use your disciplinary system to correct misconduct and deficient work performance. Document all disciplinary actions, even if the discipline is an oral reprimand. Be certain to treat all employees similarly when imposing discipline. It’s a bad idea to begin enforcing rules, such as a tardiness policy, with an employee who has recently filed a discrimination or harassment complaint against you. It’s also a bad idea to begin documenting performance deficiencies only after an employee raises concerns of discrimination.

Bottom line
Retaliation claims are on the rise, and they pose substantial risks for employers. Juries (basically comprised of employees) and judges are often able to sort out underlying discrimination claims and, more often than not, find that an employer didn’t intentionally discriminate because of an employee’s membership in a protected class (i.e., gender, race, religion, age, or disability.) However, when you take adverse action against an employee on the heels of her discrimination complaint and her attorney is able to dig up some evidence of possible retaliatory conduct, the judge will usually allow the case to proceed to trial. We recommend the following best practices:

1. Have strong antiretaliation processes;
2. Communicate your policies to all employees;
3. Strictly enforce those policies;
4. Use your performance evaluations and disciplinary tools to fairly and honestly communicate performance deficiencies that need to be corrected; and
5. Don’t begin applying discipline only after an employee raises concerns of discrimination or harassment.

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