Employers know retaliation cases continue to rise, and many appropriately fear being the subject of one. Employers also know that it is difficult, if not impossible, to know exactly when retaliation will occur. So what to do? Continue reading this entry
Providing negative job references to prospective employers about one of your former employees could constitute unlawful retaliation in violation of the Americans With Disabilities Act (ADA), the Family Medical Leave Act (FMLA) and similar anti-discrimination laws.
Retaliation claims are proliferating and are unlikely to subside anytime soon. The EEOC reported that in its last fiscal year, retaliation claims were the most common type of claim asserted in new charges. Some 36 percent of the nearly 100,000 charges filed with the EEOC in its FY 2010 asserted a claim of retaliation. During its current term, the U.S. Supreme Court has continued a trend of issuing rulings that expand anti-retaliation rights of individuals — thereby expanding the risks to and demands on employers. For example, in the March 28, 2011 edition of Legal News: Employment Law Update, we reported on the Supreme Court’s ruling in Kasten v. Saint-Goben Performance Plastics Corp., in which the Court ruled that an employee was protected from retaliation even though he had raised his wage complaint only internally and had not filed a claim with any agency or court. In the January 31, 2011 edition of Legal News: Employment
Law Update, we reported on the case of Thompson v. North American Stainless LP, in which the Court ruled that an employee who alleged he was fired in retaliation for his fiancée’s filing of a discrimination complaint against the same employer.
In an 8-0 decision last week, the U.S. Supreme Court expanded the law on unlawful retaliation when it handed down its decision in Thompson v. North American Stainless, LP.
The facts of this case were straightforward. Eric Thompson and his fiancée, Miriam Regalado, were employees of North American Stainless (NAS). In February 2003, the EEOC notified NAS that Ms. Regalado had filed a charge alleging sex discrimination. Three weeks later, NAS fired her fiancé, Mr. Thompson, who then filed his own charge with the EEOC claiming that that NAS had fired him in retaliation for Ms. Regalado’s filing with the EEOC. The trial court dismissed Mr. Thompson’s suit.
A recent case illustrates the importance of taking steps to protect your company from potential retaliation claims. Ms. Danielle L. Pickett, a former employee and a housekeeper at a nursing home, claimed that she had been fired in retaliation for repeatedly complaining about being sexually harassed by nursing home residents. Shortly after complaining about being “cornered and groped” by a resident, Ms. Pickett was told by the facility’s administrator that it was “best she part ways with the company.” A jury found in favor of Ms. Pickett.
This case is a reminder of the difficulty of defending and succeeding on a retaliation claim after an employee raises a complaint of harassment or discrimination. So what should an employer do when one of its low-performing employees begins to complain about unlawful activity — which often happens just as he or she is on the verge of being disciplined and/or terminated?
- Maintain and enforce a comprehensive written policy that assures employees that they will not be subject to discrimination, harassment, or retaliation. Establish a procedure for bringing forth complaints and assure employees that they will not be subjected to any retaliation for doing so.
- Maintain a workplace where constructive criticism and a frank assessment of employees’ performance is welcome. It is preferable to address any shortcomings in work performance at the outset so that the employee is put on notice and has an opportunity to correct his/her deficiencies.
- If an employee’s performance continues to deteriorate, even after making a complaint, continue to monitor and address the performance issues with the employee as would occur in the normal course of business. Treat the employee as you would other employees who have not yet made a complaint. Being able to show that you treated others who did not complain the same way is great evidence on nondiscrimination.
- Any complaint of unlawful activity must be taken seriously. A thorough investigation should be commenced immediately. After the investigation is completed, report the results of the investigation to the employee. Promptly take any remedial action, if necessary. The employee who brought forth the complaint should be assured that he or she will not be retaliated against. Provide the employee with the names of specific individuals to whom the employee can report any perceived retaliation.
- Document, document, document! The employee’s supervisors and managers should maintain documentation of any of the employee’s shortcomings. Remind the supervisors and managers that all documentation concerning an employee’s performance should be objective in tone and should avoid referencing the employee’s complaint.