Workplace retaliation claims rising

LAS VEGAS—Policies that are applied inconsistently and employer documentation that fails to support, or even contradicts, the stated reason for taking action against an employee can lead to successful retaliation claims against employers, an expert says.

Jonathan Levy, a partner with Santa Cruz, Calif.-based Fair Measures Inc., which provides legal training for managers, issued the warning during a session at the Alexandria, Va.-based Society for Human Resource Management's annual conference last month in Las Vegas.

He said, according to the U.S. Equal Employment Opportunity Commission, retaliation claims against employers have been up 30%, while all other claims have been down 30%.

There are three elements to the successful retaliation claim, he said: "The employee's got to engage in a protected activity," "something bad" has subsequently happened to him, and "there must be a causal connection" between the protected activity and the adverse job action.

Explaining protected activity, Mr. Levy pointed to the 2005 California Supreme Court decision in Elysa J. Yanowitz vs. L'Oreal USA Inc.

In that case, Ms. Yanowitz refused to follow a supervisor's instructions to fire an employee and "get me somebody hot." She never explicitly told the supervisor she believed his order was discriminatory and later took a stress-related disability leave because of the supervisor's subsequent treatment of her (BI, Aug. 15, 2005). Ruling the retaliation claim could proceed, the court held Ms. Yanowitz was not required to use "legal terms or buzzwords" in opposing the supervisor's discrimination, Mr. Levy said.

Discussing adverse job action, Mr. Levy pointed to the U.S. Supreme Court's 2006 decision in Sheila White vs. Burlington Northern & Santa Fe Railway Co., in which the court held that reassigning Ms. White to a different job and temporarily suspending her pay were retaliatory acts for her earlier complaint of sexual harassment (BI, June 26, 2006). The court ruled an adverse job action can be any material action that "might have dissuaded a reasonable worker" from the protected activity, said Mr. Levy.

As for the time required between the protected activity and the adverse action to establish a successful retaliation claim, "it depends," said Mr. Levy. He pointed to the 2004 decision by the 9th U.S. Circuit Court of Appeals in Lawana Porter vs. California Department of Corrections in which the court allowed Ms. Porter to proceed with her retaliation claim even though there was a several-year gap between her sexual harassment complaint and the alleged acts of retaliation.

Five mistakes to avoid

Mr. Levy said the five crucial mistakes employers make are:

• Policies are applied inconsistently: Employers must "focus on what to do to remain consistent," said Mr. Levy. Treat like cases alike, he said. "The employer can have any standard it wants," so long as it is consistently applied.

• "Employer documentation does not support, or contradicts, the legitimate business reason" provided for the employer's action: "Review relevant documents before taking action," said Mr. Levy. In one case, he said, a medical center that had lost its federal funding claimed an employee had been let go because he was the most recent hire. But an e-mail sent three months previously--and after the employee filed a complaint--asked, "What can we do right now to get rid of him?"

• "Sometimes people forget" that an adverse job action in close time proximity to a complaint looks like retaliation: "There is a "very, very high" barrier to overcome when these two events occur close together, he said.

• Failure to partner with experts: Train managers on how to act, Mr. Levy said.

• "Obviously, you want to avoid the rush to judgment" and making hasty moves: Be patient and "conduct investigations," he said, and "always hear both sides of the story."

In one case, he said, a female employee claimed sexual harassment and provided e-mails that a colleague had sent her as proof. However, when the colleague was called in and questioned, he showed e-mails that she had sent him earlier that "would have made a sailor blush," said Mr. Levy.