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Juries Often Favor Employees |
It's the workplace version of road rage: An employee claims harassment by a supervisor. The manager denies the charge and says the employee is a troublemaker.
In the interests of peace, the company transfers the complainant to another job. Next thing you know, the firm is slapped with a lawsuit charging that it retaliated by demoting the employee.
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Retaliation Can Have a Steep Price Tag
In one case, Raymond Ross was an employee at the Vanguard Group who had a good work record and a history of positive reviews and promotions. He was promoted to the highest non-officer grade for a non-supervisory employee. Four years later, he transferred to a new department, with a different set of managers.
Under those managers, Ross complained he was being treated less favorably and was subject to discrimination based on his race (African American). After that, he claimed, certain managers began to retaliate against him and he was terminated.
Ross contacted the EEOC, which first tried to mediate a settlement, then filed suit. The result: In 2008, Vanguard agreed to pay $500,000 in relief, consented to provide anti-discrimination training, drafted a policy against illegal discrimination, and established a complaint procedure.
EEOC Regional Attorney Jacqueline McNair, of the agency's Philadelphia District Office noted: "The half-million-dollar resolution of this lawsuit should send the message loud and clear to employers that retaliation is unacceptable and the EEOC will take strong action to protect the ability of employees to exercise their rights." (EEOC Civil Action No. 04-4126)
In another case, a woman filed a claim for back pay against the insurance brokerage firm where she worked.
The company then reported to the Immigration and Naturalization Service that the employee was an illegal alien using a false Social Security number.
The woman sued and won $40,000 in punitive damages for illegal retaliation. It didn't matter that she was in the country illegally. |
Retaliation suits, which were unheard of years ago, now make up a large percentage of the legal workload at the Equal Employment Opportunity Commission (EEOC).
Statistics show that in fiscal 2009, retaliation lawsuits totaled 33,613, compared with 19,694 a decade earlier in 1999.
Regardless of the merits of the lawsuits, juries are often more sympathetic to employees than they are to employers.
Here are some caution signs to watch for if they come on the heels of a complaint from an employee:
Changing the status quo. Don't make work changes, including transfers or modifications in responsibilities or schedules. If you must reassign a complainant, try to get the person's consent.
Failing to document actions. Avoid disciplinary actions that could be considered retaliatory, such as written reprimands, demotions or terminations. Justify actions with detailed documents showing that the decisions were based on facts unrelated to prior complaints.
Handing out references. If you fire a staff member, don't give poor references or any reference that isn't required.
Treating employees unequally. Don't monitor people who file complaints more closely than others. Make sure they aren't ostracized by managers. Document how all employees perform. Get rid of problem workers early on - for valid reasons.
Getting mad. If someone files a complaint and you get angry, take it out on your lawyer. Blowing up at an employee can cost you a bundle.
Be on Guard: Understand Protected Activities
To show retaliation in court, employees must show they engaged in an action protected by federal law and then suffered from adverse employer action. Here are four protected activities:
1. Discrimination claims. It's unlawful to retaliate against employees who raise a bias, discrimination or harassment claim. This includes claims filed in connection with the Americans with Disabilities Act, the Equal Pay Act, the Age Discrimination in Employment Act, and the Family and Medical Leave Act.
2. Information related to claims. A company can't reveal information when an employee is taking part in a legal proceeding, investigation or hearing linked to a federal employment claim.
3. Whistle-blowing. Federal law bans retaliation against employees who speak out against what they believe to be illegal activities by an organization.
4. Written complaints. The Fair Labor Standards Act protects employees from retaliation when they file formal complaints.
Prevention is the Best Cure
To minimize the chance of a lawsuit, here are more safeguards:
Promote awareness. Set up a written policy banning retaliation and enforce it. Teach supervisors what constitutes retaliation and how to avoid it. Tell all employees that retaliation isn't tolerated and will result in discipline.
Keep an open-door policy. Encourage your staff to report problems to the company, rather than consult a lawyer.
Investigate complaints promptly. That way, employees feel inclined to come to you, rather than someone outside the company. Keep your lawyer up to speed. If a charge is filed, try to mediate.
If you have problem employees, they may be watching for retaliatory measures and might even goad managers into inappropriate actions. It takes just a little common sense -- and some guidance from your attorney -- to avoid costly litigation.
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