EEOC PURSUES RETALIATION CHARGES INDEPENDENTLY OR IN ADDITION TO UNDERLYING CLAIM. EEOC v. OUTBACK

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1 Retaliation: Getting Even Can Be Costly Andrea Niehoff Administrative Judge St. Louis District Office

2 WHY IS THIS TRAINING IMPORTANT? Title VII, ADEA, ADAAA, EPA and GINA prohibit retaliation by an employer, employment agency or labor organization because an individual has engaged in protected activity Subsequent retaliation claims increasingly gy common even when original claim did not allege retaliation 2

3 WHY IS THIS TRAINING IMPORTANT? Retaliation is costly Increased likelihood of punitive damages Settlement of underlying discrimination claim less likely Employee morale suffers, resulting in lost productivity and loyalty Increased costs for company in responding to additional claims Higher employee turnover, resulting in increased cost for training new employees 3

4 EEOC PURSUES RETALIATION CHARGES INDEPENDENTLY OR IN ADDITION TO UNDERLYING CLAIM EEOC v. GARGIULO $215,000 plus Consent Decree EEOC v. AUTOZONE $150,000 plus Consent Decree EEOC v. MASTEC $75,000 plus Consent Decree EEOC v. OUTBACK $2.2 Million Jury Verdict 4

5 TEST YOUR RETALIATION IQ I.Q. True or False? 5

6 True or False? Jane complained to the HR department about sexual harassment. In order to protect her while you investigate, you have her transferred to another work location 20 miles away. Is this retaliation? 6

7 True or False? David, a salesman, complains of persistent racial slurs by a coworker. You think it best to keep them separate while you investigate and determine what happened. David is excluded from meetings with the company president to discuss sales leads, whenever the coworker is present. Is this retaliation? 7

8 True or False? Joe files an EEOC claim of race discrimination. After a thorough investigation, the EEOC finds that there is no cause to believe discrimination occurred. You decide to terminate him for the costly, frivolous complaint. Is this retaliation? 8

9 True or False? You are interviewing an applicant for a position. When you ask the applicant why she left her prior employer, she tells you the employer fired her because she reported sexual harassment. You later mention this to your supervisor when you are reviewing the candidates qualifications. The supervisor suggests that hiring her would invite trouble.. 9

10 What is Retaliation? Elements of a Retaliation Claim: Individual engaged in a PROTECTED ACTIVITY Employer takes MATERIALLY ADVERSE ACTION against that employee/individual CAUSAL CONNECTION between protected activity and materially adverse action 10

11 What is a Protected Activity? Opposition to Discrimination OR Participation in the statutory complaint process Did employee oppose discrimination? Opposition does not have to be formal (no magic words required) Opposition can be verbal or in writing Practice does not have to be actually unlawful Individual need only have a reasonable and good faith belief that the opposed practice was unlawful Individual can complain on behalf of himself or others Individual can complain to co-workers, managers, the public Refusing to obey a work instruction the individual reasonably and in good faith believes is discriminatory constitutes protected opposition 11

12 Examples of Opposition Protected Activity? Example 1- Employee complains to co-workers about harassment of a disabled employee by a supervisor. Example 2- There is graffiti/postings in the workplace that depict women in various stages of undress and contain derogatory terms against women. A female employee complains to her supervisor that she finds the postings offensive. Example 3- Jose, the only Hispanic employee in his work group, complains to his supervisor and requests a wage increase arguing that he deserves to be paid a higher salary for the amount/level of work he is assigned. Example 4- Tom works for a staffing company. His manager instructs him not to refer females to a Trucking company client, based on the client s request for only male employees. Tom refuses to obey the order and refers a female to the client when a work order comes in. 12

13 What is a Protected Activity? Participation Did Charging Party or someone closely associated with Charging Party file a charge, or testify, assist or participate in any manner in any investigation, proceeding, hearing, or lawsuit under the statutes enforced by the EEOC? - filing charges with investigatory agencies -being interviewed and providing information about a charge to an investigatory agency such as EEOC during the administrative process -being interviewed and providing information to an employer during an internal company investigation of a charge -being deposed in a discrimination lawsuit or providing an affidavit on behalf of a person claiming discrimination 13

14 What is a Protected Activity? Participation -person claiming retaliation need not be the person who engaged in participation (protects t close associations, spouses, sons, parents, fiances of individuals id who engage in protected activity even if they themselves did not) Thompson v North American Stainless, L.P, (January 24, 2011). In this case, employee Miriam Regalado filed a charge with EEOC alleging sex discrimination by North American Stainless. Her fiance, Eric Thompson, also worked for the company. Thompson was fired by the company about three weeks after the company was notified of Regalado s charge. Thompson then filed a charge with EEOC alleging retaliatory termination and eventually filed suit in Court. The Supreme Court held that Title VII provides a cause of action to an employee who was allegedly discharged d in retaliation ti for his fiance s protected t activity. The Court held that Title VII s allows suit by anyone within the zone of interests sought to be protected by the statute. -Court declined d to identify a fixed class of relationships for which h third party retaliation is unlawful. 14

15 What is a Protected Activity? Requesting a disability accommodation or otherwise exercising rights under the ADA Requesting religious accommodation under Title VII 15

16 What is a Materially Adverse Action? Burlington Northern & Santa Fe Railway v. White, (June 22, 2006) The United States Supreme Court announces a broad standard for determining retaliatory conduct under Title VII of the 1964 Civil Rights Act. For action to qualify as materially adverse it does not have to be a demotion, suspension, discharge, denial of promotion, compensation, or benefits. An employer's action is adverse if it is an action that t would dissuade a reasonable worker from making or supporting a charge of discrimination. 16

17 Post Employment Retaliation Actionable refusing to provide a job reference unjustified negative job reference (negative job reference does not constitute unlawful retaliation unless the reference was based on a retaliatory motive) informing a prospective employer about individual s protected activity filing a lawsuit against the former employee 17

18 EXAMPLE An employee who made an internal complaint of discrimination two years ago resigns from the company. You are the Human Resources manager and a prospective employer calls you for a reference. You tell the prospective employer honestly that you believe the employee s internal complaint of discrimination hurt staff morale. Can you be found liable for retaliation? 18

19 Covered Entity Need Not be Entity On Charge Any employer is a covered entity, thus an employer who refuses to hire or discharges an individual due to protected activity against another employer could be liable for retaliation. 19

20 How is a Causal Connection Shown? Direct evidence (rarely happens) WHAT, you are going to the EEOC? Well go for it, you are fired, don t ever step foot in here again Indirect ( circumstantial ) evidence Timing between protected activity and adverse action Adverse action applied in an unusual or unexpected manner Comments referring directly or indirectly to the protected activity Judges and juries look at all the circumstances of the employee s treatment after the employee engages in the protected activity 20

21 How is a Causal Connection Shown? The person taking the materially adverse action does not need to know about the protected activity for the company to be liable for retaliation Staub v Proctor Hospital (March 1, 2011) Cats Paw Theory of Causation subordinate bias Supreme Court clarified circumstances when an employer can be held liable for the discriminatory animus of a supervisor who did not make ultimate employment decision Employer can be liable under cats paw theory when a supervisor is motivated by bias, performs an act that is intended to cause an adverse employment action and that act is a proximate cause of the ultimate adverse employment action. Staub involved the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) but is applicable to TITLE VII cases as both statutes prohibit employment actions where unlawful discriminatory animus plays a motivating factor 21

22 EXAMPLE Female employee complains to department manager that her immediate supervisor is sexually harassing her. Immediate supervisor learns of the complaint and issues disciplinary actions to the employee for policy violations that t he does not discipline i other offenders for. Once complaining employee reaches three disciplinary actions, immediate supervisor calls HR and informs them of same. HR manager terminates employee on the basis of the three warnings. HR manager was not aware that the female employee had complained about sexual harassment from that supervisor. Can employee establish prima facie case of retaliation under these facts? 22

23 Practical Examples of Retaliation Subjecting complaining employee to closer scrutiny or singling out Disproportionately increasing disciplinary actions against complaining employee Denying or reducing benefits the employee would otherwise get Firing somebody because their insistence on complying with the law creates controversy 23

24 Practical Examples of Retaliation Assigning complaining employee to an undesirable work site or shift or changing duties Setting up the complaining employee for failure Creating a hostile environment for the complaining employee or encouraging the hostility of coworkers 24

25 Practical Examples of Retaliation Demotion Suspension/termination Unfavorable job references after termination of employment Not hiring someone because of a past history of participating in a protected activity 25

26 Things to Keep in Mind Retaliation often follows on the heels of: Internal complaint of discrimination Complaint of discrimination to an agency such as EEOC, or FEPA Sticking up for a coworker against other employees engaging in discriminatory activities Speaking up about discrimination at an office meeting Participating as a witness in a legal proceeding or investigation 26

27 Things to Keep in Mind It is important to take AFFIRMATIVE STEPS toward fostering and maintaining a discrimination- free workplace Consult a legal professional if you have any questions or doubts 27

28 Things to Keep in Mind ERRING ON THE SIDE OF CAUTION While the natural tendency is to find the reasons why an action is not retaliation, most employers don t want to find out the hard way in court! Management officials/supervisors i i must set aside normal human reaction 28

29 Things to Keep in Mind ERRING ON THE SIDE OF CAUTION Avoid taking or endorsing actions against employees who have complained of discrimination that may be interpreted as retaliation That doesn t mean you cannot discipline an employee for something she would have otherwise been disciplined for Where an adverse action is otherwise necessary, be cautious and have appropriate documentation 29

30 Tips for Preventing Retaliation Be proactive Have a clear policy Distribute the policy Make sure your employees understand the policy Reinforce your commitment to a discrimination- free workplace Provide an open door for all employees, regardless of rank or level l 30

31 Tips for Preventing Retaliation DON T BE AFRAID OF THE TRUTH! Make workers feel comfortable No reprisal Privacy Confidentiality Choice of people to complain to React to claims evenhandedly and professionally Remain neutral MAKE A DETERMINATION and TAKE APPROPRIATE ACTION 31

32 Tips for Preventing Retaliation Train Staff employees Managerial employees Monitor and follow up on complaints of discrimination Whether or not you find that discrimination actually occurred Counsel alleged discriminator about avoiding retaliation Follow up with alleged discriminator and complaining employee to make sure no retaliatory acts have occurred 32

33 Tips for Preventing Retaliation Make sure complaining employee is not being treated any differently by either supervisors or coworkers Centralize and organize complaint handling procedures as much as feasible NOTE: When a formal charge is lodged with EEOC or a similar state agency, this does not absolve you of the legal responsibility to take action in the workplace to investigate and deal with the situation that led to filing the charge 33

34 Tips for Dealing With Retaliation Take it seriously Once it has Occurred Handle it professionally and remain neutral Examine all actions and failures to act taken by supervisors in the chain of command over the employee MAKE A DETERMINATION and TAKE APPROPRIATE ACTION 34

35 QUESTIONS & ANSWERS 35

36 Resources 36

37 Thank you! 37