Florida Employment Law Blog (Ruden McClosky)
For the first time since 1965 (when the EEOC began recording these things), retaliation claims filed with the EEOC outnumbered all other claims. Of the 99,922 discrimination charges filed in 2010, 36,258 (36%) were retaliation claims, followed closely by race claims. Why? Two reasons – recent pro-employee decisions from an otherwise conservative Supreme Court, and a fully funded and invigorated EEOC.
Five years ago, the Supreme Court significantly expanded the type of employer conduct which might constitute retaliation. In Burlington Northern & Santa Fe Ry. Co. v White, the Court held that employees suing for retaliation need not prove that they suffered an “adverse employment action” such as termination, decreased pay, a transfer to Siberia, etc. Rather, the Court held that retaliatory conduct includes any action by an employer (whether related or unrelated to the workplace) that would dissuade a reasonable employee from complaining about discriminatory conduct. For example, refusing to allow a complaining employee to leave work early to attend their child’s soccer game might be retaliatory, depending on the context.
Last month, the Supreme Court expanded the class of persons who can file a retaliation claim. Thompson v North American Stainless involved two North American Stainless employees who were engaged to be married. One complained about harassment and, shortly afterwards, the other was fired. The Court held that a reasonable employee might be dissuaded from complaining about discrimination if she knew that her complaint would result in her fiancé’s termination. Thus, an employee may now pursue a retaliation claim even though the employee never complained about discrimination or participated in a discrimination investigation, so long as the employee has some sort of relationship (i.e., spouse, fiancé, life partner, sibling, parent, etc.) to another employee who has done so. Time will tell if less significant relationships (i.e., golfing buddy, yoga partner, book club member, etc.) will suffice for a retaliation claim.
In addition, the EEOC is now well positioned to investigate and pursue the growing number of retaliation claims. Congress has funded EEOC at levels not seen in decades. With that funding, EEOC has implemented several public outreach programs designed to educate employees about prohibited employment practices and to advise them how to file discrimination and retaliation charges. The EEOC has hired 155 new investigators, statisticians, support staff, paralegals and trial attorneys to handle the influx of discrimination charges. Through these efforts, the EEOC is receiving and investigating more retaliation claims and, in some cases, is pursuing those claims itself against employers.
What to make of all of this? First, the Supreme Court has taken a common-sense non-technical approach to defining the parameters of retaliation claims. Second, employers should do the same. Before taking an employment action, step back and see how that action fits in the context of any previous complaints of discrimination by the employee and the employee’s relationships to his/her co-workers. Third, involve well-trained HR professionals. Claims avoidance is infinitely cheaper than claims success – and loss.Like this:Like
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