If we gave out rings for the most successful type of discrimination claim, then retaliation would be the Tom Brady of all claims. According to the EEOC, retaliation is the most frequently alleged basis of discrimination (44.5 percent of 89,385 EEO complaints filed in 2015). According to the EEOC, the “number of discrimination findings based on retaliation has outpaced other bases of discrimination.” The EEOC has proposed changes to its retaliation guidance to include a “convincing mosaic” of circumstantial evidence to establish causal connection. This simply means that it will probably be even easier for an employee to prevail on a retaliation claim. Avoiding or successfully managing a reprisal claim requires a different approach.
Retaliation occurs when an employer or entity takes an adverse employment action [e.g. suspension] against an employee who: 1.) has complained about unlawful discrimination on the job or 2.) participated in an employment discrimination proceeding. For example, Greg Grouse files a Charge with the EEOC for age discrimination. His employer subsequently suspends him for three days for insubordination after he curses at his supervisor. Grouse files a second Charge alleging retaliation. Grouse only has to file the first Charge to establish the basis for his retaliation charge.
But that’s not fair! Grouse does not have to prove that the age discrimination alleged in his first Charge is even true. In fact, the employer’s investigation reveals that Grouse’s age claim is completely bogus and the EEOC eventually issues a No Probable Cause determination. The involved manager, Mo Hammer, feels vindicated, maybe even a little vindictive. It’s the latter “V Word” creates the problem for the careless manager. Hammer gives Grouse a routine work instruction a couple of weeks later. Grouse retorts, “Screw you, Mo!” but completes the task. Now, this has been the normal banter between Grouse and Hammer for many years, without any consequences. It is customary “shop talk.” But Hammer decides to suspend Grouse this time for insubordination. The EEOC eagerly intakes Grouse’s retaliation Charge. Yikes! Grouse has probably established the elements of proof necessary to prevail on a reprisal claim: 1. He engaged in a previous protected activity (check); 2. Grouse suffered and adverse employment action soon after filing the first Charge (check) 3. There is a casual connection between the protected activity and the suspension (check, apparently). The EEOC will consider “circumstantial evidence” when contemplating number 3, but I would wager a Probable Cause determination will be the result with these facts. Bashen recommends that all employers put in place a stop-gap (e.g. HR Representative) that prevents one manager, like Hammer, from making a unilateral decision to discipline any employee who has participated in a previous protected activity. Too little too late. Employers often wait until after an employee “complains or participates” before they start taking appropriate corrective actions against a misbehaving employee. The chief argument among employees who allege retaliation is, “I never received discipline before the complaint. The only thing that has changed is that I filed a complaint.” Hammer should have been counseling or progressively disciplining Grouse years before Grouse filed the first Charge, which would have made the suspension seem a lot more legitimate and easier to defend when filing a positon statement. We at Bashen have always advised our clients to enforce policies uniformly and document all adverse actions implemented against every employee. If the employer had been able to show that Grouse was a problem child before and after he filed the first Charge, then the employer would have been better positioned to defeat Grouse’s retaliation claim. Moreover, it would have been nice to have other employees’ disciplinary records that show the employer does not tolerate insubordination. An employer does not have to tolerate or retain a disobedient employee just because the employee has filed a discrimination complaint. However, the employer better be prepared to show that it would have taken the adverse action absent the filing.
Ignorance is Bliss. It can be difficult to keep the filing of a Charge confidential, especially when a front-line manager is the alleged bad actor, when the employer is small, or when the incident occurs at a smaller location of a larger employer. Let’s face it, people talk. However, whenever possible, we caution our clients that only employees “with a need to know” should know about a Charge. Maintaining confidentiality can greatly benefit the employer. For example, Grouse files the age discrimination Charge. With Grouse’s permission (preferably), HR transfers him to another supervisor, Holly Harmony, in another area of the plant. Harmony has no idea that Grouse filed the age discrimination Charge. Harmony gives Grouse a valid order. Grouse replies, “Screw you, Harmony!” but then he completes the task. With HR’s blessing, Harmony suspends Grouse for three days for insubordination. Harmony’s action will be much easier to defend when filing the retaliation position statement because she had no knowledge of Grouse’s age discrimination Charge (even though Grouse will almost certainly argue that she did). Ignorance is truly bliss when it comes to an employee’s prior protected activity! Tiffany Dillard is a Managing Director and Steven Bashen is the Vice President of Operations.
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