Wrath's bitter fruit

It is Friday afternoon before the holiday weekend. You have been writing up a poor-performing problem employee for the last two months, and management has been breathing down your neck to terminate her. Now you finally have enough to let her go, but she suddenly tells you that she has been subjected to harassment by another supervisor. Apart from your ruined Sunday afternoon barbeque party, how should you proceed? Will termination give her grounds to accuse you of retaliation?

Retaliation (also known as "wrath") is one of the most common "deadly sins" employers are accused of committing. In 2006, employees filed 22,555 retaliation charges with the Equal Employment Opportunity Commission (2007 numbers are not yet available). This number represents 29.8 percent of all charges filed with the EEOC in 2006 and exhibits an alarming trend of increasing retaliation claims and of employees taking an offensive approach to protecting their jobs. How employers handle these complaints is critical to whether or not they may be liable for millions of dollars in damages.

In general, employees who wish to bring a retaliation claim must show three things: 1. They were subjected to an adverse employment action; 2. they engaged in a protected activity; and 3. the adverse employment action was taken because of the protected activity. Formerly, to show "adverse employment action" an employee had to demonstrate a truly material action such as raises or demotions. For example, a shift change that did not harm the employee's pay or chances for promotion would generally not qualify as material. Courts now look at the individual circumstances of each case. For instance, an otherwise innocuous shift change may now become a materially adverse action for the single mother, who cannot arrange child care during the new shift. This raises the serious problem of how an employer could possibly know an employment decision's repercussions on an employee's life.

Regarding the second retaliation element, "protected activity" commonly refers to unlawful harassment or discrimination. Employers' problems arise from the fact that such an activity is not always obvious, and no formal complaint of the protected activity is required.

The final element, that the adverse action was taken "because of" the protected activity, also proves problematic for employers. A close time frame (less than three-month gap) between the protected activity and the adverse action raises a causal link. Second, the complaint's accuracy is not as important as whether the employee has a good faith basis for believing it is. (The EEOC sometimes takes the position that employees engage in a protected activity even if they cannot show a good faith belief that the conduct was unlawful.)

How would you know if the employee had a good faith basis for bringing the complaint or even thinking that particular conduct is unlawful? The realities of human nature also lend themselves to a retaliation claim. If a supervisor is wrongfully accused of harassment or discrimination it can be very difficult for a supervisor to truly treat the employee the same (e.g., the deadly sin of wrath).

Solutions include:

1. Upon receipt of a complaint, hold all employment actions and immediately investigate slowly and carefully. In our scenario, terminating the employee on Friday afternoon is a bad idea because the closeness in time between the complaint and the termination would raise a strong inference of retaliation. In addition, the performance problems underlying the termination may turn out to be caused by the harassment.

2. Before taking adverse action, always get the employee's side of the story before acting. When employees do not come forward with a complaint, the task is more difficult, but do not change the analysis. If you notice that an employee's performance is drastically slipping, ask why. If an employee refuses to obey a supervisor's directive, ask why. Surprisingly, the employee's poor attendance may be an attempt to avoid or oppose perceived unlawful conduct.

3. Instruct the accused and other parties involved that retaliation will not be tolerated and ask that incidents of retaliation be reported immediately.

4. Once you finish investigating and take appropriate action, let the complainant know that action has been taken and ask them to report any future incidents as soon as possible. Consider shifting the reporting structure, so that any subsequent discipline against the complainant would come from someone other than the accused. If this is not practical, you may also consider temporarily/permanently switching the shifts or responsibilities of the accused.

Anthony Hall and Dora Lane are labor and employment law attorneys in the Reno office of the Hale Lane law firm.