The High Cost of Getting Even:

Transcription

1 The High Cost of Getting Even: Understanding & Preventing Retaliation Claims Allison West, Esq., SPHR, SHRM-SCP Employment Practices Specialists

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3 HOUSEKEEPING CREDIT QUESTIONS TOPIC

4 HOUSEKEEPING Certificates delivered by no later than 3/2/2017 Be watching using YOUR unique URL for login Stay on the webinar, online for the full 60 minutes. The use of this seal confirms that this activity has met HR Certification Institute's (HRCI ) criteria for recertification credit pre-approval. Recertification Credit Hours Awarded: 1 Specified Credit Hours: HR (General) recertification credit hours toward aphr, PHR, PHRca, SPHR, GPHR, PHRi, SPHRi recertification through HR Certification Institute's (HRCI ). For more information about certification or recertification, please visit the HR Certification Institute website at Recertification Credit Hours Awarded: 1 Specified Credit Hours: HR (General) recertification credit hours toward aphr, PHR, PHRca, SPHR, GPHR, PHRi, SPHRi recertification through HR Certification Institute's (HRCI ). For more information about certification or recertification, please visit the HR Certification Institute website at

5 Today s Presenter Allison West, Esq., SPHR, SHRM-SCP Employment attorney, speaker, investigator, trainer, expert witness at Employment Practices Specialists. Top-rated speaker at SHRM, HR West, HR Star, and other industry and diversity conferences around the country. Delivers management trainings on harassment, discrimination, retaliation prevention, performance management, and more. Licensed to practice law in California.

6 The Bottom Line Session Goals Understand what retaliation is and is not Identify subtle workplace risks Proactive Employer Prevention tips, tools and strategies

7 The High Cost Compensatory damages Punitive damages Personal liability in some jurisdictions Reinstatement Injunctive relief Litigation costs Attorneys Fees Morale and Turnover Bad press

8 Fry s Friend $An assistant store manager sexually harassed a 20-yearold sales associate, who reported the harassment to her supervisor. $The supervisor reported the harassment to the company s legal department and the company turned around and fired him $Fry s Electronics paid a total of $2.3 million, one of the highest EEOC settlements of all time on a per-claimant basis.

9 The High Cost Relatively easy cases to prove Two shots to win a weak case No need to prove underlying discrimination Very broad protection

10 Some of The Laws Title VII 42 U.S.C Age Discrimination in Employment Act Americans with Disabilities Act Family & Medical Leave Act National Labor Relations Act Fair Labor Standards Act OSHA, EPA, ERISA, PDA, USERRA State and local laws

11 The Golden State Law California Gov. Code 12940(h) makes it an unlawful employment practice for any employer to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.

12 Who is Protected? Applicant Current employee Former employee Someone closely related Complainant Investigation Witnesses

13 Who is Protected? Thompson v. North American Stainless, LP (U.S. Supreme Court, 2011) Harming a close colleague of a complainant may now constitute unlawful retaliation Title VII extends protections to persons aggrieved. That term is broader than just the employee who engages in protected activity. Court would not specify the types of relationships entitled to protection Burlington standard reinforced

14 CA Prima Facie Case protected activity adverse Plaintiff engaged in Employer subjected the plaintiff to an employment action Causal adverse protected activity link between the and the employment action

15 Federal Prima Facie Case Plaintiff engaged in protected activity Employer subjected the plaintiff to a materially adverse action not limited to actions or harms that are related to employment or occur at the workplace Causal link between the protected activity and the materially adverse action

16 Protected Activity: Opposition Employee opposes unlawful practices Employee must reasonably and in good faith believe the conduct is unlawful Protection exists even if conduct is later found to not be discriminatory

17 Supremes Expand Opposition Clause Crawford v. Metropolitan Govt of Nashville and Davidson County, Tennessee (2009) protects an employee who speaks out about discrimination during an employer s investigation into another employee s complaint of discrimination from retaliation.

18 Reasonable Opposition Peaceful picketing Threatening to file a complaint with state / federal agency Informal or formal complaints to management Requesting a reasonable accommodation Disability or religious Refusing to obey an order

19 Unreasonable Opposition Violating legitimate company policies / rules Refusing to perform work Intentionally disrupting employer s business Interfering with business opportunities Violent picketing Not providing notice Badgering a co-worker to provide a witness statement and attempting to coerce her to change her statement

20 Reasonable Opposition? Paul was told to move Dorothy, a counter employee, who was missing many teeth, to the kitchen, away from customers. Paul refused believing that moving Dorothy would be discriminatory. Paul was later terminated and later sued for retaliation.

21 Reasonable Opposition? Graham complains he didn t receive a promotion because of his disability. The position required a law license and Graham did not have one.

22 Beware of Vague Opposition Employee does not have to explicitly inform employer of opposition to a particular practice see Yanowitz v. L'Oreal USA, Inc., 2005 Cal. LEXIS 8594 (Cal. 2005) Conduct alone can be opposition Look at totality of circumstances Read between the lines

23 Protected Activity: Participation Employee filed a charge, testified, assisted or participated in any manner in an investigation, proceeding, hearing or litigation Protection exists regardless of the validity or reasonableness of the charge

24 Protected Activity: Participation Protection is very broad

25 Protected Participation John was a manager accused of discriminating against a subordinate employee on the basis of her gender and sexual orientation. An outside investigator was retained. The Investigator found John was uncooperative and deceptive during the investigation and as a result, John was terminated. He later sued claiming he was retaliated against for participating in the investigation. Did John win? 25

26 CA Adverse Employment Action Materially impacts a plaintiff s, and privileges of employment job performance career advancement terms conditions Conduct that can affect or opportunity for economic Employee need not suffer detriment or injury psychological

27 Materially Adverse Action Burlington Northern & Santa Fe Railway Co. v. White (2006) 126 S. Ct Employer actions that would have been materially adverse to a reasonable employee or job applicant." Significant, not trivial Objective standard Reasonable person in plaintiff s position, considering all the circumstances

28 Materially Adverse Action Actions that would discourage a reasonable employee from making or supporting a complaint are not limited to affecting the terms and conditions of employment Beyond workplace or employment-related retaliatory acts and harm

29 Materially Adverse Action Demotion Refusal to hire Denial of job benefits Reprimands Denial of promotion Suspension Negative job reference Termination

30 Materially Adverse Action Threats Negative evaluations Harassment Solicitation of negative comments Refusing to give employee opportunity to respond to adverse employment action

31 Materially Adverse Action Loading an employee down with additional work Subjecting employee to extra scrutiny in response to a complaint

32 Typically Not Materially Adverse Action Petty slights and minor annoyances Lack of good manners Feeling frightened and humiliated Embarrassed Mere ostracism Negative performance evaluation Changes in employment resulting in inconvenience or an alteration of job responsibilities Caveat: view each of these in light of the totality of circumstances and the reasonable employee standard

33 Materially Adverse Action? Chrissie was allowed to work a flex-time schedule of 7 a.m. to 3 p.m. so she could care for her developmentally disabled son. Some of her duties were reassigned to others and she filed a charge of race discrimination based on that fact. Soon after, her employer rescinded her flex-time schedule and eliminated her position. She was assigned to a 9-to-5 position, and her flex-time request was denied.

34 Materially Adverse Action? Dory filed a claim for sexual harassment. Her performance rating at her next review was lowered from excellent to very good.

35 Materially Adverse Action? Barney filed a charge alleging he was denied a promotion because of his national origin. One week later, his supervisor invited a few employees out to lunch. Barney believed the reason his boss excluded him was because of his national origin charge.

36 Materially Adverse Action? Same facts, but beginning one week later, Barney s supervisor begins inviting all of the employees in the department, except for Barney, out for weekly lunch meetings.

37 Causal Link Break the link! Beware of Timing Identity of the person making the decision Terminated employee's job performance before termination

38 Employer s Defense/Burden Employer had a legitimate, non-retaliatory reason for the employment decision Make sure all significant contributors to the decision had legitimate non-discriminatory motives

39 Beware of Retaliatory Harassment Majority of federal courts hold that Title VII prohibits retaliatory harassment Employee is harassed because of protected activity Hostile work environment framework applies Separate claim

40 Proactive Employer Promptly and thoroughly investigate all claims Secondary review of employment decisions Suspensions or terminations Warnings that may adversely affect an employee s performance or future job opportunities Beware the Cat s Paw!

41 Proactive Employer Listen to complainers and whiners ASK employees why they are refusing to or begrudgingly follows orders Lessons from Crawford: Carefully document when employees, during internal investigations, claim to have suffered similar unlawful treatment Treat me too claims as new and distinct complaints subject to independent investigation and protection from retaliation Apply Company rules consistently

42 Proactive Employer Policies Anti-retaliation Ethics, code of conduct Clear Complaint Procedures Train managers Discuss personal liability issues Remember whistleblower statutes that may apply to the business or industry

43 Proactive Employer Limit those who need to know employee engaged in protected activity Watch out for the causal connection Wait a significant amount of time before taking any adverse action Run decisions by counsel or management Beware of unjustified negative job references DOCUMENT, DOCUMENT, DOCUMENT FOLLOW-UP IS KEY!!!

44 QUESTIONS Enter all questions into the Questions section of the GoToWebinar panel on your computer screen

45 HOUSEKEEPING Certificates delivered by no later than 3/2/2017 Be watching using YOUR unique URL for login Stay on the webinar, online for the full 60 minutes. The use of this seal confirms that this activity has met HR Certification Institute's (HRCI ) criteria for recertification credit pre-approval. Recertification Credit Hours Awarded: 1 Specified Credit Hours: HR (General) recertification credit hours toward aphr, PHR, PHRca, SPHR, GPHR, PHRi, SPHRi recertification through HR Certification Institute's (HRCI ). For more information about certification or recertification, please visit the HR Certification Institute website at Recertification Credit Hours Awarded: 1 Specified Credit Hours: HR (General) recertification credit hours toward aphr, PHR, PHRca, SPHR, GPHR, PHRi, SPHRi recertification through HR Certification Institute's (HRCI ). For more information about certification or recertification, please visit the HR Certification Institute website at

46 Thank you And Good luck! LinkedIn: linkedin.com/in/allisonwestesqsphr Twitter: twitter.com/allisonwestesq Blog: employmentpractices.net/blog

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