Retaliation: When Aggressive Offense is not Good Defense

Retaliation claims normally arise in conjunction with an employee’s assertion of workplace rights.  For example, an employee files a complaint that his failure to receive a promotion was due to race discrimination and shortly thereafter his employment is terminated.  An employer may not retaliate against an employee for such things as filing a discrimination complaint or opposing illegal discrimination, taking Family and Medical Leave time, filing a workers’ comp. claim, refusing to participate in illegal activity, or reporting illegal activity (whistleblowing).  For an employee to prevail on an employment retaliation claim, the employee must show that the employer took some negative employment action against the employee because of the employee’s protected actions.

It was long thought that the employer’s retaliation, to be actionable, had to involve serious adverse action which impacted some tangible employment benefit.  For example, adverse action was thought to include demotion, discipline, employment termination, salary reduction, negative evaluation and the like.  Recently, the United States Supreme Court, in a unanimous decision, relaxed the standard of what constitutes adverse employment action.  Now, in order to maintain a retaliation claim, an employee must merely show that the employer’s action or reaction would make a reasonable employee think twice about asserting employment rights, such as filing a workers’ comp. claim.

Although retaliation clearly includes any employer action taken with intent to harm or punish an employee for asserting legal rights, it may also include actions that an employer takes in an attempt to address the employee’s legal claims. For example, the female employee who complains that her supervisor is sexually harassing her may have a retaliation claim.  When the employer transfers her to another shift so that she doesn’t have to work with the supervisor any longer, even though the employer didn’t intend to hurt the employee, the transfer could be viewed as retaliatory if the employee needed or preferred to work the original shift.

Significantly, the validity of an employee’s retaliation claim is not contingent upon the validity of the employee’s original complaint or legal claim.  An employee’s reasonable good faith belief in the merit or validity of his complaint is sufficient.  Thus, an employee who is found not to have a valid sexual harassment complaint, for example, may nonetheless have a valid retaliation claim where her supervisor takes negative employment action against her following the dismissal of her harassment complaint.

Timing is a critical element in evaluating the retaliation claim.  Negative employment action taken shortly after learning of an employee’s protected conduct (e.g., filing a workers’ comp. claim) will look retaliatory.  By contrast, negative employment action taken substantially after an employee has filed a claim or asserted a legal right will likely lack the requisite nexus between the protected conduct and the adverse action.

Employers would be wise to adopt various strategies to prevent retaliation in the workplace.  The following are some easy steps that employers may take to minimize retaliation claims:

1.        Adopt a policy against retaliation which spells out what retaliation is and that your organization will not tolerate retaliatory conduct in the workplace.  The policy should advise employees what steps to take if they believe they are the victims of retaliation.

2.        Train managers and supervisors on the subject of retaliation; they should be instructed on what are acceptable and unacceptable responses to the employees’ assertion of legal rights.

3.         Keep confidential any complaints that the company receives.  The fewer people who know about a complaint, the less the likelihood that a manager or supervisor will retaliate against the complainant.  Make sure that you advise only those who have an absolute need to know.  Remind them what retaliation is and that it will not be tolerated in your organization.  Likewise, remind supervisors and managers who are the subject of the employee’s complaint or assertion of legal right of the company’s policy prohibiting retaliation against the complainant.  Make clear to them that they will be subjected to disciplinary action if they retaliate against the complainant.

4.         Monitor the treatment of employees who file discrimination complaints or assert legal rights to ensure that they are not the subject of retaliation.  Carefully scrutinize any proposed negative employment action against such employees to ensure that it is based on legitimate business reasons.

5.         Investigate allegations of retaliation and take prompt corrective action when retaliation occurs.  Document the steps you take to prevent retaliation and to address it when you receive a complaint.

Adverse employment action is retaliatory only if it is taken because the employee has complained or asserted a legal right.  Employers are free to take action against an employee for legitimate business reasons, such as misconduct or poor performance.  Where the timing of such adverse employment action could give rise to a retaliation claim, be especially careful to verify the legitimacy of your company’s action.

Retaliation is simply bad for business.  Companies would be wise to keep in mind the sage advice of Walter Winchell when he said, “You will never get ahead of the other guy as long as you are kicking him in the seat of the pants.”

Karen Bush Schneider is a shareholder with White, Schneider, Young & Chiodini, PC, a law firm specializing in employment and benefits law.








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