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With case law favoring employees and looser standards to meet, is retaliation really worth the risk?

March 8th, 2011  |  Pamela Wolf

As a matter of common sense, retaliating against employees for engaging in protected activity is pretty risky business. Yet, EEOC Regional Attorney John Hendrickson wonders whether legal counsel have neglected to tell employers just how dangerous retaliation is – and it’s so easy to avoid, he chides.

Speaking to attendees at the Chicago Bar Association’s annual labor and employment law update last month, Hendrickson said that EEOC charge traffic is “through the roof,” with the down economy. In fiscal year 2010, 99,922 charges were filed, with retaliation charges up dramatically – 36,358 such charges filed last year – amazingly outpacing the number of race discrimination charges that were filed. For the first time in the agency’s 45-year history, retaliation charges were more numerous than any other.

While Hendrickson noted several interesting developments, such as the 400 EEOC systemic discrimination investigations now underway nationwide, and that the use of conviction and credit records as employment selection tools are on the agency’s radar, he advised that the major developments last year were in the area of retaliation.

Risky business. When a charge of discrimination has been filed, there is a very small chance that the EEOC will find reason to believe a violation has occurred – 10 percent or less, according to Hendrickson. Given those low odds and recent case law on reprisal claims, which Hendrickson characterizes as favoring employees, it’s hard to fathom why employers continue to risk retaliatory conduct that may spawn a new charge more likely to succeed than an original charge that was unlikely to move forward.

And, recapping developments over the last year, Hendrickson observed that the standard as to what constitutes retaliation is getting looser.

Associational reprisal claim may be brought. You no longer have to be the person who engaged in the protected activity to bring a claim of retaliation, so long as you are associated with that person, Hendrickson observed. Indeed, in January, the Supreme Court held that an employee who was fired shortly after his fiancée filed an EEOC charge against their employer had standing to file a Title VII retaliation lawsuit (Thompson v North Am Stainless, USSCt, January 24, 2011).

Temporal proximity may be enough to get to trial. Earlier this month, the Seventh Circuit said that a trial court’s belief that timing was not enough to support an inference of causation was untenable, determining that in this case, the jury should make that determination. In concluding that the lower court had erred in granting summary judgment for the employer, the court also noted that one of the employer’s shifting explanations for discharging the employee – he was fired for photographing the workplace (which he was doing to show the EEOC or a court how his workstation was set up) came close to admitting retaliation. (Loudermilk v Best Pallet Co, 7thCir, February 18, 2011)

Screaming, pounding and threats. Also significant, was a district court in Wisconsin’s rejection of an employer’s contention that because the employees who brought retaliation claims were not discharged, nor did they experience any other tangible loss in pay, benefits, or position, the EEOC could not establish they suffered an adverse employment action in support of their retaliation claims. The court stressed that an adverse employment action “need not be tangible.” (EEOC v Chrysler Group, LLC, EDWis, February 17, 2011)

Here, the manager allegedly was screaming and pounding his fists on the table while threatening termination, the court noted, and threw a notepad at a complainant demanding that she write a statement confirming that she was not accusing the supervisor of sex discrimination. “This scenario paints a much more hostile and intimidating atmosphere than if [the manager] delivered his message in a normal tone of voice.” Further, a trier of fact could find the warnings of possible termination constituted anticipatory retaliation, a materially adverse action. Because the employer’s conduct, if true, may be enough to dissuade a reasonable worker from making a charge of discrimination, and because a reasonable finder of fact could infer the requisite causation to support a claim of retaliation, material issues of fact precluded summary judgment.

An ounce of prevention. As Hendrickson points out, awareness of employee protections against retaliation will grow – and the case law has tipped toward protecting employees. While initial charges of employment discrimination are unlikely to result in an unfavorable EEOC finding, retaliation claims face less of a hurtle in court – it’s just not worth the risk of employer liability. Training supervisors and managers to refrain from retaliatory conduct following a complaint of discrimination would be a wise and timely business investment.

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