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Timing can be everything when defending retaliation suits


Employers who want to avoid being accused of retaliation must have good reasons to take a negative job action against an employee who has recently accused the firm of discrimination, say observers.

They warn that “temporal proximity” between a discrimination charge and a job action such as a demotion, unwanted transfer or negative job review raises red flags and could leave employers vulnerable to being accused of retaliation.

In a report issued earlier this month, the U.S. Equal Employment Opportunity Commission reported that in fiscal 2018, retaliation charges accounted for the largest number of charges filed with the agency for the eighth year in a row, with 39,469 charges accounting for 51.6% of the total charges filed.

Experts have suggested a variety of reasons for the predominance of retaliation charges. A retaliation charge “goes so well with everything,” said Robin E. Shea, a partner with Constangy, Brooks, Smith & Prophete LLP in Winston-Salem, North Carolina.

A retaliation charge can be made in connection with accusations of race and sex discrimination, sexual harassment and national origin discrimination, “so it’s very versatile,” and probably most charging parties include a retaliation claim in their EEOC charges, said Ms. Shea.

“It’s probably the most challenging legal claim to defend,” said Harris M. Mufson, a partner with Proskauer Rose LLP in New York. When an adverse action occurs in close proximity to a complaint that has been filed, “oftentimes it can be a challenge to defend that sort of case before it goes to trial,” Mr. Mufson said.

Gerald L. Maatman Jr., a partner with Seyfarth Shaw LLP in Chicago, pointed to the U.S. Supreme Court’s 2006 ruling in Burlington Northern & Santa Fe Railway Co. v. Sheila White, which said Title VII of the Civil Rights Act of 1964’s antiretaliation provision “prohibits any employer action that might well have dissuaded a reasonable worker from making or supporting a charge of discrimination,” as leading to more retaliation claims.

Retaliation claims have increased almost every year since that ruling was issued, he said. The ruling led the EEOC “to have its antenna out” with respect to retaliation claims. It also provides the plaintiff or EEOC with a theory “that is more difficult to dispose of than other case theories,” he said.

Retaliation claims are easier to make than discrimination claims because under EEOC guidelines, as well as the rule of law, “you can simply allege” that someone who made a complaint about some unlawful conduct subsequently suffered an adverse employment action, “whether or not the underlying claim has merit,” said Eric L. Barnum, a partner with Baker & Hostetler LLP in Atlanta.

“It’s just an easier bar for employees to navigate” compared with discrimination claims, whose underlying facts “tend to be more subjective,” he said.

Susan K. Lessack, a partner with Pepper Hamilton LLP in Berwyn, Pennsylvania, pointed to the #MeToo movement. “There’s more protected activity and therefore more potential for retaliation claims if employers take some sort of action against an employee who’s complained in the past,” she said.

Jonathan C. Hancock, a shareholder with Baker, Donelson, Bearman, Caldwell & Berkowitz P.C. in Memphis, Tennessee, said he anticipates the number of retaliation charges will increase further. While unemployment numbers are very low, “there’s a pretty decent amount” of reduction-in-force activity and restructuring, which often lead to such lawsuits.

Those who lose their jobs are typically surprised and believe they should not have been selected for reduction. It is very common in those situations to attribute the layoff to a complaint made in the past, Mr. Hancock said.

Meredith S. Dante, a partner with Ballard Spahr LLP in Philadelphia, said, “Human nature has a lot to do with it.” Some supervisors, for instance, would react to a complaint that their actions were based on racism as an affront and respond to the perceived offense by not inviting the complainer to meetings or lunch, or by giving them the cold shoulder, which could result in a retaliation claim.

To either avoid retaliation charges or successfully defend them, experts advise caution in taking any negative job action against a worker shortly after a complaint has been filed.

If they take such an action, “they’d better have their ducks in a row,” said Tina R. Syring, a partner at Barnes & Thornburg LLP in Minneapolis.

Have a robust human resources department “that ensures all the policies and procedures are being adhered to,” said Beth Goldberg, New York-based chief underwriting officer for financial lines with Starr Cos. In addition, she said, training should be ongoing, “not just a one-time thing.”

All complaints should be investigated and decisions made in a “fair, reasonable and defensible” way, said Mr. Maatman. A firm’s best defense is “the integrity and quality of its internal HR investigation when a complaint is brought to its attention,” he said.

Be sure “you have a record that’s sufficiently documented to establish the legitimate, nonretaliatory basis for the adverse action decision,” including that the decision to terminate an employee was made before the complaint was filed, said Mr. Mufson.

“If employees see the shadow of termination coming, they often make complaints” with the mistaken notion it can save their job, said Mr. Hancock. But documentation indicating the termination decision predated the complaint can address this.




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