Avoiding the Employee Retaliation Trap

Employers can be liable under Title VII of the Civil Rights Act of 1964 without ever actually discriminating against an employee.  For example, a Roanoke hair stylist recently brought suit against her former employer alleging that it subjected her to a hostile work environment in violation of Title VII because she was a Caucasian woman dating an African-American man and that the salon terminated her in retaliation for complaining about harassing statements made to her about her relationship.  The court dismissed the stylist’s hostile work environment claim.  However, the Court stated that she did not need to prove that her employer actually committed an unlawful discriminatory practice to have a claim for retaliation – only that she believed that she was opposing an unlawful practice.  The court stated that it was clear that the stylist felt she was complaining about discrimination to her employer, and allowed the retaliation claim to go forward to trial. 

Many federal laws concerning employees, such as Title VII and the Fair Labor Standards Act, have built-in prohibitions against retaliating against an employee for exercising certain rights protected by the law, such as complaining about a violation of the law or testifying on another employee’s behalf concerning a violation.  EEOC relation charges have more than doubled during the last 20 years and nearly half of all charges filed with the EEOC last year included a claim of retaliation. 

Retaliation claims have become popular because employees do not have to establish that their employers actually discriminated against them or that they were subject to a hostile work environment, only that performed a “protected activity,” such as complaining to human resources about sexual harassment, and the employer took an “adverse action” against them as a result.

The danger to employers is how broadly the EEOC has defined employee’s protected rights.  For example, protected activities are not limited to formal complaints, but may include merely providing corroborating information as part of a workplace investigation.  And while discrimination claims usually require an employee to prove a material change in the terms, conditions, and privileges of employment (termination, demotion, pay cut, etc.), all that an employee needs to establish a claim for retaliation is to show that the employer took an action likely to dissuade a reasonable employee from engaging in statutorily protected activity – even if the action has no tangible effect on that person’s employment (such as threatening to terminate a spouse, encouraging co-workers to shun them, etc.). 

The obvious trap here is that an employee can now make a complaint of discrimination to their supervisor and sit back and claim retaliation if the employer attempts to discipline them, even if, according to the EEOC, the discipline takes place years later.

While employers cannot prevent every retaliation lawsuit, they can reduce their risk of liability if they are sued by taking the following actions:

1. Drafting an anti-retaliation policy that not only defines retaliation but provides specific examples that might not be apparent to supervisors. The employer should provide the policy to every employee – preferably as part of an employee handbook – and have each sign a statement confirming they have reviewed the policy;
2. Providing regular training to supervisors, managers and employees on the anti-retaliation policy;
3. Create a mechanism that allows employees to bring concerns or complaints about retaliation to management or human resources;
4. Promptly investigate any complaints of retaliation, making sure to actually listen to the employee’s concerns, and provide corrective action if needed;
5. Make it clear that supervisors will be subject to discipline, including termination, for taking retaliatory actions;
6. Monitor the treatment of any employee who files a workplace complaint or offers information related to a workplace complaint;
7. Develop a workplace policy for handing adverse employment action, including having human resources review disciplinary warnings, relocations, pay cuts, suspensions, and terminations. There needs to be verifiable, documented, and thoroughly evaluated reasons for any such actions; and
8. Consistently following their own practices and procedures and not deviating for specific cases.

Jeff Wilson is an attorney at Pender & Coward who focuses his practice in the areas of employment law, including counseling and business litigation. He can be reached at (757) 502-7341 or jwilson@pendercoward.com.