Workplace Retaliation: A Major Source Of Employer Exposure

Despite increased media and judicial attention paid to workplace retaliation over the last decade, and the growing recognition that California employers may be held liable for abusive behavior by their leaders, both public sector and private industry organizations are still coping with retaliation charges on a regular basis.

March 16, 2012

Pick up any newspaper and you will see headlines announcing the latest lawsuit filed against an employer for retaliation.

Examples

On March 1, 2012, a news story described a lawsuit by a TV anchor in Florida, fired after 17 years on the job, accusing the station of dismissing him as a reprisal for his complaint to the Occupational Safety & Health Administration (OSHA) about unsanitary conditions in the workplace.
On March 4, 2012, the U.S. Department of Labor announced its lawsuit against the U.S. Postal Service, alleging a pattern of adverse actions against a safety specialist after he had assisted another employee in exercising her rights under the Occupational Safety & Health Act.
And, on March 14, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) announced that Sterling and Sterling, Inc., a New York insurance company will pay $120,000 to settle a retaliation lawsuit the agency filed on behalf of a sales telemarketer. While on maternity leave, the employee filled out an EEOC questionnaire stemming from her complaints of race and sex harassment. Two weeks after she returned to work, she was suspended and then fired. Astonishingly, the company actually cited her EEOC filing when it terminated her, which on the eve of “March Madness” made the EEOC's charge a slam dunk.

Jury verdicts for retaliation are increasing at an alarming rate, which is probably why the number of such charges filed with federal and state enforcement agencies are at all time highs. The Equal Employment Opportunity Commission received a record 99,947 employment discrimination charges in the last fiscal year. Retaliation charges under all the statutes enforced by the Equal Employment Opportunity Commission were the most frequently made at 37,334, which represents 37.4 percent of all charges. The California Department of Industrial Relations, California Department of Fair Employment & Housing, and the U.S. Equal Employment Opportunity Commission all have established special "retaliation units" to cope with the rise in claims.

Even the United States Supreme Court, which is generally business-friendly, has systematically expanded the range of who may win damages for retaliatory actions in the workplace over the last three terms. The Equal Employment Opportunity Commission actively litigates retaliation claims. The Los Angeles Fire Department recently agreed to pay $494,150 to a firefighter/engineer who was continually harassed by fellow firefighters who mocked him and made offensive comments of a sexual and religious nature. An Equal Employment Opportunity Commission investigation uncovered evidence that the harassment was linked to a lawsuit he had filed against the Catholic Church for sexual abuse and that he had suffered retaliatory discipline for his participation in another employee's discrimination complaint.

In another lawsuit by the Equal Employment Opportunity Commission, a federal jury in Atlanta awarded $51,500 back pay, compensatory and punitive damages to four family members who were all fired from a small restaurant when one resisted sexual harassment and they all reported it to management.

There are several reasons that retaliation charges are at an all time high.

1. Protection From Retaliation Is Quite Broad
Every federal employment discrimination statute defines retaliation as a separate form of wrongdoing. Individuals who make reports or complaints about any kind of discrimination or harassment in their workplace, or who participate truthfully and in good faith in the investigation of a co-worker's complaint, are protected from reprisals or punishment for their "protected activity." Whistleblowers who report suspected illegal or unethical practices also enjoy expanded opportunities to collect hefty damages if their employers later punish them without justification. Finally, workers who request or take a job-protected leave of absence and those who seek a reasonable accomodation for a disability can't be penalized for doing so.

There are 31 separate bases for employees to launch a retaliation charge enforced by the California Department of Industrial Relations and Labor Commissioner.
There are an additional 22 job-protected leaves of absence under a combination of federal and state law that also carry penalties for retaliating against an employee who requests, takes or returns from leave.
Beyond that, there are dozens of "protected characteristics" under California's employment discrimination standards and a complaint about discrimination or harassment for any of these carries protection from retaliation.

In a trio of cases, the U.S. Supreme Court has paved the way for more workers to seek sizeable damages based on reprisals for their participation in a broad range of activities.

The march toward expanded rights for individual employees began in 2009 in Crawford v. Metropolitan Government of Nashville, in which the Supreme Court again expanded workers' freedom from retaliation for opposing discriminatory practices. Prior to this case, such oppositional activity was largely limited to participation as a witness or complainant in a formal investigation by the employer or an enforcement agency.

In Crawford, the Court extended protection to an employee who communicates less formally to her employer regarding a belief that the employer was engaged in a form of employment discrimination, by answering a manager's question. The opinion concluded "there is, then, no reason to doubt that a person can 'oppose' by responding to someone else's question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks her a question."

In January, 2011, the U.S. Supreme Court unanimously ruled that the scope of the anti-retaliation provisions in Title VII of the Federal Civil Rights Act applied to an individual harmed by retaliation, even if that person had not himself filed a charge of discrimination or responded to formal or informal questioning about a co-worker's complaint.

In Thompson v. North American Stainless, Eric Thompson's fiancée, Ms. Regalado, filed a sex discrimination complaint with the Equal Employment Opportunity Commission. Thompson was fired three weeks later. He then filed his own charge with the Equal Employment Opportunity Commission, claiming his termination was in retaliation for his fiancée's initial complaint. The justices concluded that Thompson "was the employer's intended means of harming Regalado. In these circumstances, we think Thompson was well within the zone of interests sought to be protected by Title VII." The employer argued that allowing Thompson to sue would open employers up to retaliation lawsuits from everyone who is terminated and has any connection to a complaining employee. In response, Justice Scalia wrote in the opinion, "We expect that firing a close family member will almost always meet the standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize."

Two months later, the Supreme Court ruled in Kasten v. Saint-Gobain Performance Plastics Corp., that oral complaints are sufficient to support retaliation cases under the federal Fair Labor Standards Act (FLSA). Concluding that the phrase "filed any complaint" in the Fair Labor Standards Act's statutory text can include both oral and written complaints, the Court relied on an examination of congressional intent and the Department of Labor's and the Equal Employment Opportunity Commission's interpretation of the phrase.

The Court focused heavily on the fact that, at the time Congress passed the Fair Labor Standards Act, a relatively high number of American workers were illiterate, and thus an interpretation of the phrase "filed any complaint" to include oral complaints furthered the Act's stated purpose of protecting workers. The Court also noted that the agencies tasked with enforcing the Fair Labor Standards Act have consistently interpreted "filed any complaint" to include oral complaints.

The list of protected activities is long and growing. Here are some highlights:

Filing for or receiving workers compensation benefits
Filing an Equal Employment Opportunity Commission or Department of Fair Employment & Housing charge of discrimination
Participating in an Equal Employment Opportunity Commission or Department of Fair Employment & Housing investigation
Reporting discrimination or harassment through internal employer policies
Participating in an internal employer investigation as a witness
Supporting a co-worker's complaint or report of discrimination or harassment
Answering informal questions from a manager or supervisor about workplace issues
"Opposing" discriminatory, unlawful, or unethical actions
Filing a complaint or report of workplace hazards with CAL-OSHA or FED-OSHA
Filing a complaint for wages with the Department of Labor or State Labor Commissioner
Filing a complaint with the National Labor Relations Board about workplace conditions
Posting commentary on social media concerning workplace conditions
Refusing to perform an illegal or unethical act within the workplace
Threatening to report suspected wrongful activity (whistleblower laws)
Reporting or threatening to report safety violations or lack of safety training
Reporting accounting abuses or illegal activity in a taxpayer funded agency
Complying with a valid subpoena
Requesting or taking leave of absence (short term or long term)

Note: The list of job-protected, benefit-protected leaves is also lengthy (with many applying to small employers).

2. Employee Complaints Raised In Good Faith, Even If Mistaken, Are Protected Activity
If the employee has a reasonable, good faith belief that the employer is doing or has done something "wrong" (legal, ethical, policy violation or contractual breach), and the employee's response to the wrongdoing is reasonable, the law will protect that employee from retaliation. This is so even if the employee's claims are ultimately not substantiated.

Truthfully raising an issue, making a complaint, or participating in any proceeding (internal or external) is absolutely protected. Reason: an employee's concern about whether he can "prove it" may chill the exercise of rights and violates public policy. In Barbosa v. IMPCO Technologies, the worker sued for retaliation after he was fired, claiming he'd made a good faith wage complaint, even if ultimately his claim was in error, and that the company couldn't retaliate against him for it. The trial court dismissed his lawsuit. But, the Court of Appeals reversed, holding that under longstanding California public policy, employees must feel free to question their pay without fear of retaliation, even if the employee's concern is ultimately unsubstantiated.

Accordingly, a good faith complaint is sufficient to protect against retaliation. False complaints may still be dealt with appropriately. But be careful when determining whether a complaint is knowingly false or mistaken but in good faith because if later sued, a neutral and well documented investigation will be critical.

3. The Scope Of Potentially Retaliatory Adverse Actions Is Broad
In 2006, in White v. Burlington Railroad, the Supreme Court ruled that the Title VII anti-retaliation provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. The Court adopted a lower standard of harm the claimant must establish to prove he or she was subject to retaliation. Instead of requiring a showing that the employer engaged in conduct that materially adversely affected the employee in the terms or conditions of employment, the Court adopted a much looser and vaguer standard. Now, at least for purposes of Title VII, "adverse action" is any action by an employer that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination."

Retaliation may include:

Adverse performance review — lower than the employee earned
Changes in shift or work responsibilities with no objective business purpose
Negative or abusive treatment by supervisors or managers
Improper denial or delay of an earned promotion
3 "D's" - Discipline, Demotion, Discharge
Ostracism or overt ridicule by supervisors
Ostracism by co-workers that is ignored, tolerated, or incited by supervisors
Taunts, threats or other coercive activities
Bullying (verbal or via electronic communications)

4. Damages And Other Relief Can Be Significant
Successful claims for retaliation carry with them "make whole" remedies. This can include, but is not limited to: reinstatement of employment, reversal of a demotion, payment of back wages, reinstitution of benefits, purging personnel files of any adverse memos or letters, a cease and desist order, and the posting of a notice in the workplace. Reasonable attorneys' fees and court costs are also recoverable under federal and state anti-retaliation statutes and the California Private Attorney General Statute (PAGA).

5. Employees Don't Have To Quit Or Be Fired To Sue For Retaliation
Retaliation lawsuits used to predictably follow an individual's departure from the workplace, and the charges often centered on whether or not a termination decision was retaliatory. Not anymore. Retaliation charges are often raised while the employee is still coming to work. Because "protected activities" take place every day — particularly those involving participation in internal investigations or seeking job-protected leaves of absence — workers can vindicate their rights and still enjoy the privileges and benefits of employment. Naturally, this makes front-line leaders, who may already feel overwhelmed and under siege, reticent about managing performance of work teams in which someone is claiming to have been wrongfully treated.

What Can Employers Do To Minimize These Risks?
Prevention Strategies: When front-line leaders don't know how to respond to internal employee complaints, leave requests or informal questions about wages or benefits, they often react in ways that breed retaliation claims. Beef up your policies and emphasize consistent enforcement. A policy is ineffective without training leaders to understand what it means and how it should be applied. Focus on the variety of potential retaliation situations and provide specific direction on how to respond when a worker brings an issue to their attention. Emphasize the importance of appropriate communications and remind managers that a single intemperate e-mail can derail your defense and e-nail your company in the courtroom.