1	THE RETALIATION CLAIM A Legal Minefield For Employers
2	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
3	Understanding the Retaliation Claim “10 Questions”
4	1. “Retaliation” Law – What Is It About? Protection for an employee who complains about or opposes illegal employer activities
5	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
6	2. Legal Basis (cont) State law Workers’ Compensation Laws Whistleblower Statutes Miscellaneous Laws Statutory “right to complain” Focus of discussion – Title VII
7	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
8	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
9	"EMPLOYER ACTION" EMPLOYER ACTION Alleged act of discrimination EMPLOYEE RESPONSE Participation Opposition
10	5. What Employer Actions Amount to Retaliation? “Ultimate actions” only Position of several circuits Involves hiring, promoting, firing, determining compensation “Employer-friendly” position
11	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
12	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
13	"EMPLOYER ACTION" EMPLOYER ACTION Alleged act of discrimination EMPLOYER RESPONSE Adverse Action EMPLOYEE RESPONSE Participation Opposition RETALIATION
14	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
15	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
16	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
17	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
18	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
19	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
20	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
21	10. How to Avoid Liability? (cont) Document Carefully evaluate continuation of internal grievance process after external claim filed Always consult HR and legal personnel
22	"“You cannot get ahead..." “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