THE RETALIATION CLAIM

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THE RETALIATION CLAIM Powered By Docstoc
					THE RETALIATION CLAIM

    A Legal Minefield
     For Employers
Retaliation Claims

A  favorite new employee claim
 EEOC filings up dramatically
 Included in 1/3 of all discrimination
  suits
 A “high risk” exposure for employers
Understanding the Retaliation Claim



           “10 Questions”
1. “Retaliation” Law – What Is It
              About?

  Protection for an employee who
    complains about or opposes
     illegal employer activities
2. Retaliation Claims – What Legal
Basis?
 Federal law
   Title VII, Civil Rights Act of 1964

   Other Civil Rights Laws – ADA,

    ADEA, FLSA, FMLA, OSHA
   Federal Claims Act and Whistleblower

    Protection Act
   First amendment, U.S. Constitution
    2. Legal Basis (cont)
 State law
   Workers’ Compensation Laws

   Whistleblower Statutes

   Miscellaneous Laws

 Statutory “right to complain”
 Focus of discussion – Title VII
3. What Are Protected Activities?

 “Participation”activities
   Filing a claim with EEOC or in court

   Assisting with EEOC or court
   proceeding (providing information or
   testimony)
   Advising another employee re rights

 Narrow (covers few activities) but deep
 (absolute) protection
    4. Any Activities Protected Beyond
    Filing Claim/Suit?
   “Opposition” activities
      Protesting/complaining about discrimination

    Refusing to carry out unlawful order
    Opposition to activity of co-worker

    Opposing discrimination outside workplace

 Broad (covers many activities) but shallow (less
  absolute) protection
   EMPLOYER ACTION
       Alleged act of
        discrimination
                            EMPLOYEE
                             RESPONSE
                              Participation
                              Opposition
      5. What Employer Actions
      Amount to Retaliation?
 “Ultimate   actions” only
   Position of several circuits
   Involves hiring, promoting, firing,

    determining compensation
   “Employer-friendly” position
5. Employer Actions - Retaliation?
(cont)
  “Material  adverse change in
  employment terms”
    Rule for most circuits

    May involve demotion, reprimand,
     negative job evaluation or reference,
     refusal to grant normal benefits or
     office privileges, disadvantageous
     transfer, harassment, countersuit
    More “employee friendly” position
5. Employer Actions – Retaliation?
(cont)
    EEOC   position: any action that may
     deter employee from exercising rights
       Most “employee-friendly” position

       Few courts have adopted

    Some (few) types of unfavorable
     treatment fall short of retaliation
   EMPLOYER ACTION
       Alleged act of
        discrimination      EMPLOYEE
                             RESPONSE
                              Participation
                              Opposition




   EMPLOYER
    RESPONSE              RETALIATION
       Adverse Action
6. Discrimination Claim Fails –
Status of Retaliation Claim?
 Judicial  view: retaliation claim may
  still succeed - “right to be wrong”
 A not infrequent outcome
 Evidentiary and “human nature”
  differences in two types of claims
7. What About the “Preemptive
Strike” Employee Strategy?
  Applies  only to “opposition” claims
  Strategy: Anticipating adverse action,
   employee presses discrimination claim;
   then cries “retaliation” when adverse
   action administered by employer
  The legal reality:
    Employee must have good faith belief that
     discrimination occurred; and
    This belief must be objectively reasonable
  8. Are There Limits on an
Employee’s Opposition Activities?
 Illegal conduct not protected
 Lawful but “objectionable” actions
    Violation of policy

    Disruptive activities

    Communication with external parties

       Usually protected

       “Loyalty” argument by employer

    Judicial rule of “reasonableness” applied
9. Who Can Claim Protection
from Retaliation?
 The  victim
 A protesting employee who is not a
  victim
 A protesting employee who is not in a
  protected class
 A protesting employee who is related
  to or associated with the victim
 A former employee
    10. How to Avoid Liability?
 Have   clear anti-retaliation policy
 Inform and train work force about policy
 Follow a “zero tolerance” approach for
  retaliatory actions
 Understand breadth of “protected
  activities” and “adverse action” under
  the law
10. How to Avoid Liability? (cont)
 Forward  all discrimination complaints to
  HR for proper management and
  monitoring
 Handle retaliation complaint as separate
  grievance
 Endeavor to carry on “business as usual”
  in dealing with complaining employee
10. How to Avoid Liability? (cont)
    Follow common sense guidelines
       Check for unquestioned non-retaliatory
        reason
       Be consistent with institutional and
        departmental policy
       Be consistent with treatment of other
        employees
       Be consistent with past treatment of
        employee
       Scrutinize timing
10. How to Avoid Liability? (cont)
    Document
    Carefully  evaluate continuation of
     internal grievance process after
     external claim filed
    Always consult HR and legal
     personnel
   “You cannot get ahead while you are
    getting even.” Dick Armey

   “Mankind must evolve for all human
    conflict a method which rejects revenge,
    aggression, and retaliation. The foundation
    of such a method is love.” Martin Luther
    King

				
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