Defending Against Worker Retaliation
Employment attorneys are advising clients to revisit their systems and practices, following early signs that the Equal Employment Opportunity Commission is beginning to make good on its promise to crack down on employers taking retaliatory actions.
By David Shadovitz
Early indications suggest the Equal Employment Opportunity Commission wasn't bluffing when it said it would make retaliation a focus in 2013 and beyond.
The agency kicked off the new year with several consent decrees involving allegations of retaliation, suggesting the EEOC seems more than willing to put some muscle behind its promise to clamp down on retaliation.
In its Strategic Enforcement Plan released on Dec. 17, the EEOC referenced retaliation, noting that "individuals who exercise their rights to challenge workplace discrimination or assist others in doing so face retaliation too frequently."
Several advocacy groups had urged the agency to focus its enforcement efforts on hiring discrimination and retaliation, particularly for areas such as pay, pregnancy and caregiver discrimination, and issues involving the Americans with Disabilities Act Amendments Act.
"There's little question that the EEOC is serious when it comes to retaliation," says Michael W. Fox, a partner with Ogletree Deakins in Austin, Texas.
Fox notes that he can't think of a lawsuit he's been involved in lately that hasn't had retaliation attached to it. (Today, retaliation claims represent four out of every 10 charges filed with the agency.)
Among the recent settlements involving retaliation:
On March 28, 2013, East Coast Waffles Inc., an Atlanta-based company which owns and operates more than 100 Waffle House restaurants in Florida and Virginia, settled a retaliation lawsuit filed by EEOC, in which the agency charged a Tampa Waffle House of firing an employee in retaliation for opposing race-based harassment by several customers. Under the terms of the settlement, East Coast Waffles agreed to pay $25,000 to the terminated employee, provide training to managers, HR personnel and investigators, and submit reports to the EEOC for two years.
Earlier in the year, on Jan. 24, D.O.E. Technologies Inc. settled an EEOC discrimination and retaliation suit, in which it agreed to pay $130,000.
According to the EEOC, Christopher Vely, a sales representative with unilateral conductive hearing loss, had repeatedly asked the companies' management to provide a reasonable accommodation by permitting him to telecommute or to work in a quiet area. Vely alleged he was fired by the software developer in retaliation for his request for a reasonable accommodation.
The next day, Cappo Management Inc., an automobile dealership doing business as Victory Nissan of Dickson, agreed to pay $85,000 in monetary damages to resolve a retaliation discrimination lawsuit filed by the agency.
Cappo Management allegedly fired salespersons Korie Dunn, Traci Manor and Carolyn Love after they complained that a sales manager had sexually harassed them.
And on Jan. 29, travel operator Kintetsu International Express (USA) Inc. agreed to pay $77,500 to settle a disability discrimination lawsuit filed by the EEOC alleging that Kintetsu harassed and discriminated against a tour coordinator in Maui because of her malignant rheumatoid arthritis. The lawsuit alleged that Kintetsu unlawfully retaliated against the tour coordinator's co-worker.
Just yesterday, the agency filed a suit against Winfield Rubber Manufacturing Co., accusing the Winfield, Ala., company of violating federal law when it retaliated against one of its managers for firing an employee for sexual assault.
Employment attorneys predict companies can expect to see more cases alleging retaliation in the coming months.
What makes them so attractive to plaintiff attorneys? Certainly, the fact that they're easier to win doesn't hurt, they say.
"Talk to any plaintiff lawyer and he will tell you that he's much more excited to have a good retaliation claim than a discrimination claim," says Fox. "Juries get ginned up over them because [the charges suggest a company] isn't only violating the law, but is also going after someone who is trying to do the right thing."
Gerald L. Maatman Jr., a senior partner with Seyfarth Shaw LLP in Chicago, finds that to be the case as well.
If you're an employer, Maatman says, these cases are very difficult to defend against. "They're very fact-laden … and very difficult to get in and out of quickly," he says.
Maatman notes that employers are especially susceptible in cases involving workplace harassment, in which employees claim a supervisor harassed them. "Cases involving someone with supervisory power who's taken an adverse action against an employee are laden with retaliation problems," he says.
Complaints around terms and conditions of employment, along with violations of the Americans with Disabilities Act, represent other fertile areas for these lawsuits, he adds.
So what can employers do to stay off the EEOC's radar?
Employment attorneys suggest a good first step would be to put in place standard operating procedures for employment-related complaints.
Protocols should include "open avenues of communications so complaining employees, who say they have been retaliated against, feel they have a mechanism and procedure for letting the company know," Maatman says.
Training is also key, he adds. Managers and supervisors need to understand what might be considered retaliatory -- and how to respond.
Personnel decisions, Maatman says, need to pass the following test: Would they have been instituted had that employee not filed a complaint? "Employers need to ask the question, 'Why now?,' in justifying their decisions," he explains.
The biggest mistake companies typically make? Not having a paper trail for their actions, Maatman says. "You need to be able to back up your decisions," especially when terminations involve a supervisor who's being accused of harassment.
Juries are increasingly using retaliation claims to make the point that companies need to tread carefully when it comes to taking action against someone following a complaint.
"[Retaliation] is sort of the 21st century version of the public flogging," says Randy Coffee, a partner with Fisher & Phillips LLP in Kansas City, Mo.
Even prior to its SEP, Coffee says, the EEOC took allegations of retaliation very seriously. But they're definitely paying a lot closer attention today, he adds.
"If you need to take action against an employee, you better have your ducks in a row," he says. "We often see companies assuming, rightly or wrongly, that the complaining employee is making the complaint to simply protect himself or herself, and therefore not giving the underlying complaint the kind of attention it deserves. So the investigation that should be taking place isn't."
The EEOC, he says, is especially interested in those cases where an employer is asking an employee to give up certain rights after filing a complaint.
To stay off the EEOC's radar, Coffee says, companies need to make sure that those following up on internal complaints are thoroughly trained in the proper way to conduct an investigation.
Otherwise, Coffee and others suggest, employers could soon find themselves on the receiving end of an EEOC investigation.