Numbers do not lie. It has become a standard part of anyone's labor and employment law practice: take a discrimination complaint — whether it is before an agency or a court — and more often than not a retaliation claim is also involved in the mix. Typical example: "I complained, but was ignored. Then, they fired me." Case law tells us a retaliation claim can be asserted, even if there is no validity to the underlying discrimination complaint.
Why The Number Of Retaliation Claims Keep Going Up
There are a number of interrelated reasons why the U.S. Equal Employment Opportunity Commission, other
agencies and courts are seeing a steady increase in retaliation
claims. First, employees are being asked to report problems they
witness or experience in the workplace. Whether it is pursuant to
an open door policy, an ethics or compliance hotline or a reporting
mechanism for sexual harassment or discrimination complaints, we
are effectively encouraging employees to become
whistleblowers.
For example, the Ellerth and Faragher cases established a commonly
known defense against harassment claims under Title VII, the
Faragher-Ellerth defense. This defense is available to employers if
they exercised reasonable care to prevent and promptly correct any
sexually harassing behavior and the plaintiff employee unreasonably
failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm
otherwise.
As a result, this defense incentivizes employers to develop strong
compliance programs as an affirmative defense to hostile work
environment cases. It is not a coincidence that we have seen more
retaliation cases since Ellerth and Faragher were decided and more
employers adopted proactive policies. The more we encourage
employees to report alleged misconduct and file complaints, the
more inevitable it becomes that there will be an increase in the
number of people who use that mechanism. Those users are entitled
to protection from retribution.
Second, there are a growing number of statutes that protect
whistleblowers from retaliation. The thinking goes something like
this: laws are needed to expressly prohibit companies from doing
things we do not want them to do. Who is in a better position to
keep an eye on what is happening at a company than the employees?
These potential witnesses need to be protected from their
employers; otherwise, these witnesses will not come forward. The
best way to protect them is to make it unlawful for companies to
get rid of these workers. If their jobs are protected, they will be
more likely to come forward.
Third, if someone accuses you of doing something that is
inappropriate, it is human nature to want to defend yourself. The
more reprehensible the act, the stronger the urge to defend.
However, it is a slippery slope from defense to vindication to
retribution. "We have an old saying in Delta. 'Don't
get mad. Get even.'" When D-Day says that to Flounder in
"Animal House," it is funny. When it appears in an
interoffice email between two supervisors, it is a smoking gun
admission that leads a jury to ask, "Can we award more than
what the plaintiff is asking for?"
What To Do About Retaliation Allegations
How do we deal with this mushroom cloud of retaliation allegations?
First, as in-house counsel, you should know the circumstances
under which these claims may arise. It is really amazing how many
statutes out there protect employee complaining, witnessing alleged
misconduct and whistleblowing. In addition to retaliation for
making Title VII claims, there are statutes that protect employees
from retaliation if they:
- Complain about wage and pay (Fair Labor Standards Act)
- Complain about working conditions that affect coworkers
(National Labor Relations Act)
- Complain about safety and health issues (Occupational Safety
and Health Act)
- Complain about financial mismanagement (Sarbanes–Oxley
Act)
- File a workers' compensation claim (In Texas, this is
covered by the Texas Labor Code. Other states may have similar
laws.)
- Attempt to prevent fraudulent claims to the U.S. for payment
(False Claims Act)
- Exercise rights or prevent attainment of benefits under employee benefit or pension plans (Employee Retirement Income Security Act)
In addition to those statutes that span across industries to
protect employees who complain or blow the whistle, there are
several industry-specific statues. For example, truck drivers who
report a dangerous vehicle or refuse to drive a dangerous vehicle
are protected by the Surface Transportation Act. Though there are
laws pertaining to multiple industries, there are more statutes
addressing the health care industry than any other. One national
statute, the Emergency Medical Treatment and Active Labor Act,
protects physicians or hospital employees who refuse to transfer
unstable patients or who report patient dumping.
Below are additional situations faced by health care employees that
are covered by Texas statutes. Other states may have similar
protections.
- Employees of hospitals, mental-health facilities and treatment
facilities who report a violation of law or violation of rules
under state codes or related state agencies (Texas Health and
Safety Code)
- Nurses who in good faith report to their employer any situation
that they have reasonable cause to believe exposes a patient to
substantial risk of harm as a result of a failure to provide
patient care that conforms to minimum standards of acceptable and
prevailing professional practice or to statutory, regulatory or
accreditation standards (Texas Occupations Code)
- Assisted living facility employees who file a complaint,
present a grievance or provide information relating to personal
care services (Texas Health and Safety Code)
- Health care employees who file a complaint, present a
grievance, or provide in good faith information relating to home
health, hospice or personal assistance services (Texas Health and
Safety Code)
- Employees of intermediate care facilities for the mentally retarded who report legal violations or cooperate in investigations of the facility (Texas Health and Safety Code)
Some of these protections are broad, while others are limited.
You should review the statutes in order to best serve the employer.
If you are unfamiliar with any of these statutes or need additional
clarification, it is wise to consult an attorney who specializes in
labor and employment.
Once versed in the statutes, you should ensure the employer knows
what types of employee activity are protected under law from
retaliation. In addition, recommend the employer follow the tips
below to mitigate risks of retaliation lawsuits:
- Suspend First, Terminate Later: When a
whistleblower has allegedly engaged in wrongdoing, remind the
employer not to jump to the conclusion that the employee actually
did something wrong. They should take time to conduct a thorough
investigation. Another old expression rings true: "Measure
twice, cut once." If the conduct is so egregious the employer
does not want the suspect on the premises, or if having the person
on the premises will compromise the investigation, advise the
employer to suspend the employee pending the outcome of the
investigation.
- Let Time Pass: As you know, the temporal
proximity between protected conduct and adverse action does not
necessarily determine liability, but the shorter the period of time
between the protected conduct and adverse action, the more likely
it is that someone will connect the two events and conclude one
caused the other to happen. The more time that passes between the
two events, the less likely it is that the two will be seen as
connected. Remind employers that it is often wise to bide one's
time.
- Consider Past Practices: Your
whistleblower is accused of having done something wrong, and your
investigation supports your conclusion that corrective action has
to be taken. If this is the case, you should sit down with the
employer and review how past situations have been handled and
ensure consistency in your approach.
- Create a Culture Where Questioning and Reporting are
Encouraged: Work with the employer to create a
policy that says retaliation will not be taken against employees
who ask questions or report information that might be damaging to
the company. In addition, you should advise employers to go one
step further and let employees know their employment is not at
peril if they bring forth negative information. The more employees
see the employer's interests are aligned with theirs, the more
likely they will be forthcoming with needed information. After all,
Enron had a lengthy code of ethics, but reading it and knowing what
happened there are two entirely different things.
- Offer an Explanation: If adverse action
is going to be taken against an employee, the employer should be
able to explain the reasoning. Before ever taking action, you and
the employer should ensure the adverse action makes sense and is
unrelated to the protected activity. You and the employer also
should develop a thoughtful response to the inevitable question,
"Why is this happening?" If you do not tackle this
question head on, the fertile mind of the employee and the jury
will take hold and start making assumptions and leaping to
conclusions. Assumptions and conclusions such as, "The
employer's actions are illegally motivated and are just trying
to cover up what was done." And remember, the employee is
going to have to prove "but for" engaging in the
protected activity, the adverse action would not have taken place.
How does your explanation stand up against that?
- Keep the Story Consistent: Remind the
employer to keep the story consistent, especially if brought to
trial on claims of retaliation. As you know, a jury will assume the
inconsistent story teller is lying. Make sure the employer is
adequately prepared.
- Have a Witness at All Interviews: If a meeting foreseeably could lead to one of those "he said/she said" moments, make sure the employer has a witness present. Employers have the right in most cases to insist upon the witness of their choice. The employee does not get a say as to who the witness will be. Have the witness do something more than just sit there. For example, the witness can be an extra set of ears and eyes; let the witness be a note taker, leaving the employer the freedom to closely listen to what is being said. Later, your witness can be invaluable if needed to rebut any allegations of whether the employer bullied or intimidated the person being questioned.
Modern business owners and their in-house counsel can no longer
ignore the fact that retaliation claims are part and parcel of the
employment law mosaic with which they must deal. Just because their
numbers are rising does not mean they should be feared. Instead,
recognize employees have this additional avenue for contesting the
employer's adverse action against them. Even if the underlying
discrimination claim has no merit, retaliation claims can have a
life of their own.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.