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Judy Greenwald

Supervisory retaliation is a growing liability for employers

When an employee complains, supervisory reaction may violate federal law

August 5, 2012



Retaliation by supervisors and company executives against employees for making discrimination, harassment, whistle-blower or other complaints is an expanding liability for employers that shows no signs of waning.

A U.S. Supreme Court ruling six years ago has had the unintended effect of encouraging such claims in the workplace, and the difficulty of defending these claims often confounds employers, experts say.

Employers can take steps to avoid and defend themselves against retaliation claims, including being wary of taking any quick action against an employee who files a claim and bringing in objective third parties, such as human resources, to monitor the situation (see related story).

Retaliation claims filed with the U.S. Equal Employment Opportunity Commission increased 3% in fiscal 2011 to 36,344 and accounted for the greatest portion—37.4%—of overall claims filed. The total number of claims filed with the EEOC across all categories remained basically flat.

What's more, the number of retaliation claims filed by employees has more than doubled since 1997, while the amount of settlements more than tripled during that period (see chart, page 19).

Another factor that helps explain why retaliation claims are so prevalent can be gleaned from a survey released in January by the Arlington, Va.-based Ethics Resource Center, which found that 24% of whistle-blowers said they experienced workplace retaliation in 2011, up sharply from 15% in 2009.

Gerald L. Maatman, a partner with law firm Seyfarth Shaw L.L.P. in Chicago, said retaliation is a problem “because it's low-hanging fruit that's readily available to plaintiffs lawyers.”

Mr. Maatman cited the U.S. Supreme Court's 2006 ruling in Burlington Northern & Santa Fe Railway Co. vs. Sheila White in which the plaintiff alleged she was reassigned to a different job and temporarily suspended in retaliation for her sexual harassment complaint.

The court's ruling redefined retaliation as actions that are “harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” And the ruling said retaliatory actions are not limited to those affecting the terms and conditions of employment.

Mr. Maatman said the ruling “lowered the bar” of proof required to establish retaliation. “Whenever an employer makes an employment decision short of termination that's adverse to an employee, (it) creates the opportunity for the worker to claim retaliation,” he said.

“You don't have to get fired or demoted” to allege retaliation, said Kelly H. Kolb, a shareholder at Fowler White Boggs P.A. in Fort Lauderdale, Fla. Transferring a worker to a different shift or branch or denying a worker's previously approved requests to attend his child's soccer games also could result in retaliation charges, he said.

“There's also a perception among the plaintiffs' bar that retaliation charges are more likely to succeed than the underlying discrimination charge,” said Richard D. Tuschman, a shareholder with Akerman Senterfitt L.L.P. in Miami.

In fact, experts say that retaliation charges are sometimes upheld when the underlying charge is dismissed.

Burlington “established that a ruling is dependent upon the facts and circumstances of each case,” Mr. Maatman said. “Employers have a harder time beating (these claims) short of going through a full trial,” and plaintiffs attorneys use that as leverage to reach settlements.

Patricia Eyres, an attorney with Scottsdale, Ariz.-based Eyres Law Group L.L.P., said a wide range of federal and state laws have retaliation provisions, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act and the Americans with Disabilities Act.

Philip M. Berkowitz, a shareholder at law firm Littler Mendelson P.C. in New York, said employees also file claims under provisions of the Sarbanes-Oxley Act of 2002, which established new financial reporting standards for U.S. businesses. “Courts are recognizing more frequently that employees have the right to complain about ethical violations,” he said.

Furthermore, the U.S. Department of Labor under the Obama administration has reversed a prior position that limited the scope of whistle-blower retaliation claims under Sarbanes-Oxley, Mr. Berkowitz said.

Christopher W. Olmsted, a shareholder at Barker Olmsted & Barnier A.P.L.C. in San Diego, said he also sees retaliation claims made in connection with complaints about overtime, breaks, safety violations “or any matter that you might call whistle-blowing.”

Anthony J. Oncidi, a partner at Proskauer Rose L.L.P. in Los Angeles, said there is often an inverse relationship between the frivolousness of the underlying discrimination or harassment claim and the strength of the retaliation claim.

“When you've got genuine harassment or discrimination, I think most employers are savvy enough to know they're not going to be in any position to terminate” that employee after he has made a claim, he said. But a false employee allegation distracts and undermines management, and an employer that is not “well counseled” may decide to terminate or take an adverse job action against the worker, Mr. Oncidi said.

“It's one of the most difficult things to navigate with an employer because usually there's a lot of antipathy towards that employee,” Mr. Oncidi said. “It's almost an insuperable challenge for an employer to act as though nothing has happened.”

Plaintiff attorney Frederick M. Gittes, a principal at the Gittes Law Group L.L.C. in Columbus, Ohio, said he thinks retaliation is common among employers.

“Maybe it's true in some cases that the manager who's accused wasn't trying to discriminate ... but the manager nevertheless is insulted, affronted, angry at being accused” and having to defend himself, he said.

Martha J. Zackin, of counsel at law firm Mintz Levin Cohn Ferris Glovsky & Popeo P.C. in Boston, said a retaliation claim is “much harder to defend than a discrimination claim.”

“Juries don't really think that employers discriminate as much as they used to,” said Michael W. Fox, a partner with Ogletree Deakins Nash Smoak & Stewart P.C. in Austin, Texas. “But I think juries really do believe that when someone pushes back against an employer, that employers tend to strike back.”

 



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