Retaliation: When Employer ‘Payback’ May Pay Off for the Employee

Editor's Note: Mr. Austin is a member of the Labor and Employment Section of Ward and Smith, P.A.

What is Retaliation?

Wrongdoing in the workplace falls into three broad categories: (1) Discrimination, which is the imposition of less favorable terms and conditions of employment on the basis of a legally protected trait, characteristic, or classification such as race, sex, national origin, color, religion, disability, or age; (2) Harassment, which is unwelcome conduct that interferes with the employee's job, again on the basis of one of the protected characteristics; and (3) Retaliation, which is adverse action that an employer takes against an employee because the employee complained about discrimination or harassment. In a word, retaliation is employer "payback." The risk is a new charge or even a lawsuit against the employer. The potential "pay off" to the employee is the same array of remedies that may come of a successful suit for discrimination or harassment, including back pay and compensatory damages.

What is the Source of Retaliation Law?

The same laws that prohibit discrimination and harassment either explicitly or implicitly provide the basis for the law of retaliation. Retaliation is specifically prohibited by Title VII (race, sex, color, national origin, and religion); the Age Discrimination in Employment Act ("ADEA") (age); the Americans with Disabilities Act ("ADA") (disability); and 42 U.S.C. § 1981, another law that prohibits racial discrimination. Also, under the Family and Medical Leave Act (FMLA), the employer cannot retaliate against an employee for exercising FMLA leave rights. Furthermore, other laws prohibit retaliation against employees who exercise their rights under workers' compensation, wage and hour, and workplace safety laws. There are also numerous federal and state "whistleblower" statutes that prohibit retaliation against an employee who has challenged employer practices. In fact, virtually any law that protects classes of individuals or behavior in the workplace can be said to prohibit the employer from retaliating, i.e., taking "adverse action," against an employee in response to the employee's "protected activity" of complaining that the employer has violated the law.

What "Protected Activity" is Shielded?

An employee is engaged in protected activity when the employee invokes a right or opposes an activity which he or she believes is illegal under the discrimination and harassment laws. Protected activity is thus divided into "free access" or "opposition conduct."

Protection for "free access" allows the employee to report or file a charge about any activity the employee believes, in good faith, to be illegal or improper conduct by the employer. The "access" may be to state or federal enforcement agencies or to internal grievance procedures.

The phrase "opposition conduct" refers to activity by the employee who, in good faith, opposes practices in the workplace that the employee believes to be unlawful. In such cases, the employee may engage in reasonable opposition conduct, such as verbal objections made to supervisors, or the filing of a complaint with a civil rights agency, labor organization, or a state or federal enforcement agency.

To later prevail on a claim of retaliation, the employee need not succeed on the underlying claim of discrimination or harassment. The employer may have been right and the employee wrong in the first instance. To prove retaliation, the employee need only demonstrate that he or she engaged in protected activity, whether "free access" or "opposition conduct" described above; that he or she then suffered a materially adverse action; and that there was a causal connection between the protected conduct and the employer's adverse action.

What Sort of "Adverse Action" is Illegal?

Illegal retaliation is not limited to activity that affects terms and conditions of employment. The employee has to show only that a reasonable person would be dissuaded from exercising his or her or rights by the employer's retaliatory actions. That is, the employee is not required to show extreme job action, such as termination, demotion, or reduction in pay. Actionable retaliation also would include an onerous shift change, the relocation of an office, decrease in administrative support or benefits, a bad evaluation, exclusion from meetings, a bad job reference, or changed job assignments. The test is whether the employer's retaliatory acts would chill a reasonable employee's resolve to complain about, or assist in complaints against, discrimination or harassment in the workplace.

How Does an Employee Prove Retaliation?

The employee must prove that the employer was aware of the protected conduct at the time the employer took the adverse action. Proximity in time is an important factor. The more time that elapses between the employee's protected conduct and the time of the adverse action by the employer, the more tenuous the claim of retaliation.

The employee also must prove a causal connection between the protected activity and the retaliatory adverse action. That is, the employee has to prove that the retaliation would not have happened but for the protected activity, or that the protected activity was a motivating factor. The employer then will have the opportunity to demonstrate that the adverse action was not reprisal for the protected activity but was legitimate job action based on poor performance or employee misconduct.

Why Is Retaliation Such a Growing Problem?

Everyone is a lawyer these days. The internet provides extensive access to laws and articles about the law. Employees in the modern workplace generally know their rights and will often stand up for themselves and their co workers. There is also the matter of human nature. The supervisor who feels one upped by a subordinate may have the urge to get even.

The employer, on the other hand, often errs on the side of inaction, iced by anxiety over those very same dynamics, together with the inertia of not knowing what to do. Certainly, the employer must act prudently when taking any job action against an employee, and particularly an employee who has engaged in protected conduct. However, deferring the exercise of legitimate supervisory authority will contribute to the unfortunate mix that can produce retaliation claims.

How Can an Employer Minimize the Risk of a Retaliation Claim?

Education and communication are key factors. Here are some proactive steps that an employer can take to minimize the risk:

• Explicitly prohibit retaliation in written employment policies.

• Publish and follow complaint and grievance procedures.

• Immediately address employee complaints consistent with those protocols.

• Provide special training for all supervisors on the issue.

• Work with employees who engage in any protected conduct to bring the matter to satisfactory resolution.

• Maintain accurate and complete documentation.

Management will want to monitor how employees who have exercised workplace rights are treated afterward, maintaining a balance between protection from punitive adverse action and the creation of some imagined immunity or safety zone.

If the need arises to take disciplinary action, the following steps should be followed:

• Document the incidents of misconduct or unacceptable performance.

• Communicate (always two on one) with the employee, making it clear that the discipline is based on misconduct or unacceptable performance.

• Apply workplace rules fairly and consistently.

Remember: If management fails to document it, the rest of the world will conclude it did not happen. And think longitudinally. Remember not only where you are, but where you have been and where you are going. Maintain proportion in the here and now, remain mindful of how comparable behavior has been treated in the past, and take action that will stand the test of time. Do not take action that is substantially more or less severe than you think you would take in the future when there is similar behavior by yet another employee.

Disciplinary action always should be timely. A particularly troublesome scenario for the employer occurs when there is a lapse of time, especially weeks or months, between misconduct by the employee and disciplinary action. In the meantime, if the employee has filed an EEO, OSHA, worker's compensation, or some other complaint, the employee then can make a claim of retaliation. The lapse of time even may be telescoped – for instance – misconduct on Monday, worker's compensation claim on Tuesday, and disciplinary action on Wednesday. This is not to say that the employer should act in haste, but only be wary of the opportunistic employee who will take advantage of the slightest opening.

In any case, but especially here, the employer should undertake a thorough investigation and carefully document all facts and circumstances. The most persuasive way for an employer to prove that the adverse consequences had nothing to do with the employee's exercise of a protected right is to have evidence that demonstrates how the adverse action was going to happen regardless of the protected activity.

The watchwords are always communicate, document, and verify.

© 2008, Ward and Smith, P.A.

Ward and Smith, P.A. provides a multi-specialty approach to the representation of technology companies and their officers, directors, employees, and investors. William Joseph Austin, Jr. practices in the Labor and Employment Section, where he concentrates his practice in workers' compensation and employee benefits. Comments or questions may be sent to wja@wardandsmith.com

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.