Myrna L. Maysonet, Esq., Shareholder Greenspoon Marder
In life, love and business, timing is everything. Retaliation under Title VII[i] should be added to that old adage. The elements of a claim for retaliation under Title VII are easily established: (1) a protected activity by an employee; (2) an adverse action by an employer; and (3) a causal connection between the two.[ii] However, successfully defending a retaliation claim is a much more difficult task. In fact, many employers successfully defeat an employee’s sexual harassment claim at trial only to succumb to the employee’s retaliation claim. The exposure for the losing employer on a retaliation claim is pretty high and typically includes, but is not limited to, damages to the plaintiff and potentially hundreds of thousands of dollars for the successful plaintiff’s attorneys’ fees.
In my experience, the culprit behind most successful retaliation claims boils down to one common factor: unchecked emotions. Once an employee files a claim of discrimination, the employment relationship becomes emotionally charged. The employer often feels betrayed and the employee feels persecuted. Without some kind of neutralizer, these situations will often result in a successful retaliation claim. By taking some crucial steps, employers are forced to make decisions in a neutral and objective manner, successfully eliminating the most common causes and resulting in successful retaliation verdicts.
Promulgate and Strictly Enforce Employee Conduct Policies.
The crux of any retaliation claim is that an employee was subjected to an illegal adverse action because he or she made an allegation of discrimination.[iii] The cases in which an employee successfully pursues a retaliation claim share a number of common causes. The first one is the lack of clear disciplinary rules, or alternatively, the lack of a uniform enforcement of the company rules. These omissions encourage the arbitrary enforcement of discipline, which in turn creates a thriving environment for retaliation claims. This scenario is commonly found in less structured environments such as “mom-and-pop shops” where everyone is treated like “family.” Typically, there is a problematic employee who is routinely late or not performing his or her job duties. The supervisor attempts to correct the problems through verbal warnings, but none of these performance deficiencies are properly documented because there are no written rules or established progressive disciplinary policies in place. The performance or behavioral problems continue to escalate and the employer decides to discharge the problematic employee. However, the employee sees the writing on the wall and immediately complains that he or she was discriminated against by the supervisor. Any subsequent disciplinary action taken after that complaint will be instantly viewed as retaliatory, irrespective of its validity.
To prevent and to successfully defend against these kinds of scenarios, employers must inform employees of relevant policies and practices. Simply stated, tell them about the ground rules for their continued employment with the company. We typically refer to these rules as Standards of Conduct or Employee Conduct Policies. These are rules alerting employees of possible disciplinary measures available to the employer to rectify instances of employee misconduct. All crucial policies should be provided to the employees in writing. Likewise, and equally important, an employer must inform employees – also in writing – about the potential consequences of violating the company’s rules and procedures. This step should typically occur at the time of hire or during training meetings, and it should always be documented to avoid challenges in the future.
However, the implementation of rules alone is insufficient to prevent retaliation claims. Rules are worthless if they are not enforced. The employer
must uniformly and consistently apply the promulgated rules. Deviation from set policy will be challenged as pre-textual in nature thereby eliminating one of the employer’s most effective weapons against retaliation claims. For example, if a company has established an attendance policy, then it must strictly enforce that policy across the board at all times. An employer cannot win a retaliation claim if an employee can show that others who violated the same policies, as he did, were not subjected to the same discipline. Similarly situated employees should be treated equally, or a jury will view an employer’s reason for the employee’s discharge as pre-textual or as the result of his or her exercise in a protected activity.
Promulgate and Strictly Enforce Anti-Discrimination Policies and Reporting Procedures.
The second line of attack in defeating future retaliation claims is to implement and enforce an anti-discrimination policy and reporting procedures. Anti-discrimination and reporting policies
must instruct the employee in writing that the employer does not make employment decisions based on an employee’s membership in a protected category. It must also establish guidelines for employees to internally report complaints of discrimination. It should specifically identify the person or persons to whom an employee can communicate complaints of discrimination. An employer must remember that a potential harasser can be the employee’s direct supervisor, so disclosure alternatives must be provided for an employee that may be subject to this scenario.
As with the rules of conduct, having a written anti-discrimination policy is worthless if employees cannot utilize it or the employer is not responsive to the complaints. It is crucial for an employer to show that the anti-discrimination policy is effective when utilized by employees. This does not mean that every complaint of discrimination will be found to be valid or that an employee’s requested action is always taken. Because personality conflicts completely unrelated to discriminatory animus are sometimes disguised as “discrimination” complaints, it means that every complaint is thoroughly and objectively investigated and appropriate action is taken, if found to be necessary. An effective policy stops inappropriate conduct, even if it does not rise to illegal discrimination [iv], and provides measures to avoid further discrimination, including illegal retaliation.
The most common scenario creating liability for the employer is when managers have not been properly trained on how to deal with complaints of discrimination. Most employees will first alert a direct supervisor or manager of complaints of discrimination. If a supervisor or manager is unaware of his or her duties under the company’s anti-discrimination policy or ignores his or her duties, the employer will most likely lose the potential retaliation lawsuit. For example, an employee may report to his or her direct supervisor that he or she was being harassed by a co-worker. The supervisor is unaware of the company’s anti-discrimination policy and fails to report the complaint to the company’s Human Resources Department or to conduct an investigation pursuant to the company’s policy. Instead, the supervisor unilaterally decides that the complaint is unwarranted and shortly thereafter, disciplines the same employee. In this scenario, there is a great likelihood that the employee can assert a successful retaliation claim. The company is now subjected to immense liability because of the decision of a single supervisor. The same outcome will occur when supervisors purposely disregard a selectively enforced policy.
The key to avoiding these unfortunate and all-too-common scenarios is to train supervisors and managers to understand the importance of the anti-discrimination policy and reporting procedures and their roles in immediately informing the appropriate persons concerning the complaint. Remember, most supervisors and managers are not going to be experts in Human Resources. However, they should be held responsible for ensuring discrimination complaints are immediately communicated to the people designated by the anti-discrimination policy and reporting procedures and who, presumably, have the skill sets necessary to investigate the complaints and make neutral and objective decisions. All employees should be informed at the time of hire of the company’s anti-discrimination policy and reporting requirements. Companies should, at the very least, provide annual anti-discrimination training for all employees and supervisors. Specific emphasis should be placed when training supervisors on the perils of retaliation and their responsibility to ensure that every disciplinary action proposed or taken is grounded and supported by objective facts which can withstand future scrutiny. This is usually the biggest hurdle for an employer when dealing with a retaliation claim.
Take Emotions Out of the Picture by Requiring a Neutral and Objective Party to Make Employment Decisions Involving Those Who Have Filed Complaints of Discrimination Internally or with the Equal Employment Opportunity Commission (“EEOC”).
In a retaliation claim, the ultimate question for the Court or jury to determine is whether the employer’s decision was pre-textual in nature. “The heart of the pretext inquiry is not whether the employee agrees with the reasons that the employer gives for the [adverse action], but whether the employer really was motivated by those reasons.” [v] Consequently, an employer’s stated motives or reasons for taking an adverse employment decision will
always be challenged in a retaliation claim. Who made the adverse decision, what that person knew, and when that person knew it are crucial questions in determining the merits of a retaliation claim. The employer has absolute control over the answers to these questions and should ensure that the ultimate adverse decision taken is not improperly tainted by any potential discriminatory animus. In fact, an employer can defeat a retaliation claim if the employer can show it had a legitimate reason for taking the adverse action. [vi]
As discussed above, the typical work force is not trained in handling or investigating complaints of discrimination. To most, a charge of discrimination is a personal attack, particularly if they are identified as the alleged harasser or wrongdoer. Human beings are emotional, and emotions are bound to usurp objectivity and neutrality. While it should go without saying that supervisors accused of harassment should not be making critical employment decisions regarding the complaining employee, this is exactly what often happens, with disastrous results for the employer. This is the very essence of a retaliation claim, and the solution requires the implementation of separate and distinct procedures for spotting and handling employment decisions involving employees who have engaged in statutorily protected activity; whether it involves discriminatory complaints filed internally, the EEOC, or relating to other statutes such as the Family Medical Leave Act. The key is to remove the perceived conflict of interest by introducing a neutral and objective person into the decision equation who can independently corroborate that any proposed adverse action is not motivated by discriminatory animus, but rather by verifiable and objective evidence. This is where a Human Resource Representative (“HR”), or someone similarly trained, becomes the employer’s best asset to defeat retaliation claims.
The purpose of HR is not to make operational decisions. Those decisions ultimately belong to management. HR is there to guide and advise the employer with respect to employment decisions involving persons who have engaged in a protected category. HR, in other words, serves as a watchdog by challenging and verifying the accuracy or propriety of disciplinary decision proposed by management. Because HR is typically involved in employment decisions for all employees, he or she is in the best position to know whether the company has promulgated applicable procedures. Likewise, HR is also privy to whether a particular policy is actually enforced or not; is knowledgeable concerning operations; and can assess whether a supervisor’s reasoning for taking a disciplinary action is suspect or infirm. This issue sometime arises in a sales context where statistical data can be manipulated to show certain results which upon further review can be easily refuted. In other words, HR’s role is to serve as a soundboard and to spot potential problems. The main advantage of HR is that since he or she handles complaints for a living, so to speak, he or she is not driven by emotions, thereby effectively removing the emotional baggage which taints a supervisor’s objectivity after been accused of discrimination or retaliation.
While there are no guarantees in life, I have found that when employers implement these steps to uniformly and objectively address disciplinary issues and discrimination complaints, they are more likely to successfully defeat retaliation claims. Successful employers promulgate policies that are uniformly enforced; they strictly adhere to written progressive discipline polices; and most importantly, they have a separate process of vetting employment decisions involving employees who engage in protected activity that remove emotions and conflict of interests from the decision making process.
With more than 15 years experience, Myrna L. Maysonet is a shareholder with Greenspoon Marder’s Labor & Employment and Class Action Defense Groups. Ms. Maysonet has significant experience in matters brought under Title VII, FLSA, ADA, ADEA and equivalent civil rights state statutes and in litigating in multiple jurisdictions in states such as Florida, Nevada, Utah, Tennessee and South Carolina.
[i]42 U.S.C. § 2000e3(a).
Alvarez v. Royal Atlantic Developers, Inc., F.3d —-, 2010 WL 2631839, *11 (11th Cir. July 2, 2010).<
[iii]A retaliatory adverse action is any action which “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006). Typical adverse actions include, but are not limited to, demotions, discharges, change of schedules, or retaliatory actions against relatives of the person complaining.
[iv]Title VII is not a civility code and not every slight or offensive comment will be an actionable claim for discrimination or retaliation under Title VII.
Oncale v. Sundowner Offshore Services, Inc, 523 U.S. 75, 118 S.Ct. 998,1000-03 (1998). The sole intent of Title VII is to combat illegal discrimination in the workplace and not personal animosity. See Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982); Henson v. City of Dundee, 682 F.2d 897 (11th Cir.1982).
Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1333 (11th Cir.1998).
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254–55 (1981).
Reprinted with Permission. © 2012 Thomson Reuters.