A Trap for Employers

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It doesn’t take an employment law expert to predict that certain workplace actions, such as making sexually charged comments, can create legal problems. But even seasoned practition­ers are being challenged by the legal problems arising from an increasing number of workplace retaliation claims.

A wide range of workplace conduct can lead to retaliation claims. And, as the range of potential retaliation claims recognized by the courts expands, experts say filings are also on the rise.

Statistics support this assertion: According to the Equal Employment Opportunity Commission, the number of retaliation charges filed with the federal agency’s nationwide field offices increased from 7,900 in fiscal year 1991 to 18,100 in fiscal year 1997. For fiscal year 2003, the number was 22,690.

“Retaliation is one of the fastest-growing claims filed with the EEOC and litigated in the courts,” says Tina Burnside, a senior trial attorney with the commission’s Minne­apolis area office.

Retaliation can be a challenging concept for an em­ploy­er to grasp because it doesn’t require proof of the initial discrimination claim. Even if the underlying discrimination complaint is meritless, a plaintiff can win if an employer responded improperly to the plaintiff’s efforts to help enforce discrimination law.

That’s because the retaliation itself–against an individual who files a charge of discrimination, participates in an investigation or opposes discriminatory practices is considered a discriminatory practice under federal employment statutes such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act and the Age Discrimination in Employment Act.

Restrain Yourself

Burnside speculates that retaliation claims arise from pure emotion. “It is just the whole nature of employment discrimination,” she says. Plaintiffs lawyer Steven An­drew Smith of Minneapolis says the claims are a trap for many employers–especially smaller companies–because they don’t understand it’s illegal to retaliate against someone who makes a discrimination complaint.

After learning about a discrimination charge, Smith explains, an employer can get caught in the heat of the moment, “walk down to the office of the person who did it, and make some sort of statement: ‘How dare you make that complaint! I’ll get you!’ or ‘I’ll teach you!’ That’s going to be enough to get you by summary judgment.”

From a defense per­spec­tive, a retaliation claim is “prob­ably the scariest single area of employment discrimination law” in an individual case, says Paul Grossman, a lawyer in Los Angeles who represents employers. “I would rather try almost any individu­al case before a jury than a retaliation case.”

The reason retal­iation cases are tough to defend, Grossman says, is that those hearing the case tend to be­­lieve the plaintiff’s side of the story. “Judges and juries just assume that the employer is going to want to get even.”

Today, too, courts are recognizing retaliation causes of action that once might have been considered invalid. Thus, potential pitfalls can be difficult to predict.

While some inappropriate responses to discrimination reports are fairly obvious–immediately firing the complaining employee, for example–other actions might not strike even an experienced employment attorney as likely to lead to a retaliation claim.

And even a significant time delay between a retaliation claim and a termination or other disciplinary measure is not always a bar to recovery, Smith says, so long as a plaintiff can show a causal connection between the discrimination charge and the alleged retaliation.

For example, the 5th U.S. Circuit Court of Appeals based in New Orleans said a plaintiff’s discharge, more than six years after filing a discrimination claim, was an appropriate basis for a retaliation complaint when the discrimination charge was expressly discussed at the plaintiff’s termination meeting. (According to the retaliation suit, an employer representative even read the EEOC’s determination letter aloud at a review session the plaintiff and her lawyer attended after she had been fired.) Fabela v. Socorro Independent School District, 329 F.3d 409 (2003).

Another cutting-edge cause of action for retaliation can be created, experts say, when an employer penalizes an applicant or worker because of a discrimination issue concerning a different employer.

This allegedly happened to a municipal firefighter in Rochester, N.Y., who was denied a promised promotion. He contended this was payback for his investigation in his role as a fire union official–of a sexual harassment complaint by a union employee against the fire union president. The fire union president was also a Rochester firefighter and happened to be a friend of the Rochester fire chief.

Reversing the district court’s grant of summary judgment, the 2nd U.S. Circuit Court of Appeals based in New York City said the firefighter’s retaliation claim was viable, even though the underlying discrimination complaint concerned the union rather than the city. McMenemy v. City of Rochester, 241 F.3d 279 (2001).

Defining Terms, Choosing Defenses

What exactly constitutes retaliation varies, depending on the federal statute at issue and the appellate circuit in which it will be applied.

Most federal appellate courts, for instance, broadly define the “adverse employment action” required to establish a retaliation claim in discrimination cases, Burnside says. A few federal appeals courts, led by the 5th Circuit, re­quire “ultimate employment actions,” such as termination, suspension or demotion, she notes.

This is not the approach that the EEOC takes, how­ever. That agency’s compliance manual prohibits any adverse treatment that is “based on a retaliatory motive and is reasonably likely to deter individuals from engaging in protected activity,” Burnside says. Actionable re­taliation claims can be based on “threats, reprimands, negative evaluations, harassment, job transfers or other conduct that has a negative effect on an individual’s employment,” she says.

Definitions aside, there is also the matter of the myr­iad laws under which retaliation claims may be brought. In addition to federal employment discrimination statutes, many other federal laws provide for retaliation claims. It is also possible to file retaliation claims under state law.

“Virtually every statutory scheme has some form of protection against retaliation,” Smith says. “I think employers aren’t always aware of the number of types of retaliation claims.”

For example, a number of federal appellate courts recognize a cause of action for retaliation concerning “any complaint made by an employee to his or her employer” about an apparent violation of the Fair Labor Standards Act, Smith says.

What is required to prove the plaintiff’s case, though, under the FLSA and other statutes may not exactly parallel the prima facie elements required to show retaliation in employment discrimination cases, he notes.

Whistle While You Work

Statutes intended to promote whistle-blowing about corporate wrongdoing are a popular basis for retaliation claims–and often claims with little or no basis, Gross­man says.

“They set up a meeting to inform the employee of his termination, and shortly before the meeting the employee blows a whistle: ‘I think this accounting practice is improper’ or ‘I think this business practice is fraudulent’ or ‘I think we’re ignoring adverse test results that this product may be unsafe,’ ” he explains. “If you’re in trouble, blow a whistle, set up a retaliation case. That’s really what’s going on.”

Plaintiffs lawyers, however, say that employers also have found ways to work the legal system to their own advantage.

In the 8th U.S. Circuit Court of Appeals at St. Louis, for instance, federal judges tend to assume that any adverse employment action taken more than six months after a discrimination complaint is not causally connected to the complaint, Smith says. So savvy employers intent on circumventing anti-discrimination laws may simply bide their time.

“I can usually tell when a company is getting advice on things like that, particularly in the 8th Circuit or in Minneapolis,” Smith says. “There will be a complaint, and then literally between six and seven months later the employee is terminated for something.”

Although it is still possible to prove a retaliation claim after a time gap like this, more evidence is required. Unless the employer says something that makes it clear that the employee is being disciplined or fired because of the discrimination complaint, the courts probably will assume the two are not related, he says.

“The more patient employer will sit there and seethe for six months, and then let the ax fall,” Smith says, or “all of a sudden start nitpicking an employee’s performance–‘You came in at 9:01 instead of 9 o’clock.’

“At that point, if there are no comments, no other evidence to show it was retaliation,” he says, “that’s a very difficult case.”

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