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Retaliation takes its place front and center

July 5, 2011

Anti-retaliation provisions and anti-discrimination laws go together like cocaine and waffles.  Title VII, the ADEA, the ADA (purists feel free to add additional A’s if you must), the FMLA, and the California FEHA contain virtually identical provisions preventing employer retaliation for opposing discrimination or participating in any investigation of discrimination.  Yet  retaliation is often considered the tail of the discrimination law dog.  It’s not.  In fact, it’s increasingly becoming the dog’s very sharp and painful teeth.

Here are five things employers and business owners need to know about retaliation, followed by three tips to mitigate retaliation risks.

1.  Retaliation is the claim most frequently filed with the EEOC.  The EEOC’s statistics from fiscal year 2010 (October 1, 2009-September 30, 2010) showed that retaliation was the most frequently filed charge.  That means that for the first time in the agency’s history retaliation claims outpaced race, disability, gender, and every single other protected class.  Employees are adding retaliation to their discrimination claims at an increasing clip, and there’s no reason to think they’re going to stop.

2.  The pool of potential plaintiffs is huge.  Retaliation victims are the largest protected class there is.  That’s because everyone who “opposes” or “participates” is a potential plaintiff.  Obviously, that pool includes any discrimination plaintiff who made a good faith complaint or filed a charge, regardless of whether the complaint had any legal or factual merit.  It also, however, includes anyone who complained that someone else was treated unfairly.  It includes anyone who talked to the employer about the alleged discrimination — which means anyone who saw it or heard of it, unless the employer’s investigation was incomplete (in which case you’ve got other problems).  That’s a lot of folks.

3.  Retaliation encompasses a broader range of conduct than discrimination.  A retaliation plaintiff only needs to show a reasonable employee would have been deterred from making or supporting a charge of discrimination. Reassignment, suspension without pay, denying prospects for advancement, or conduct constituting constructive discharge all suffice to state a retaliation claim.  Retaliation can even occur after the plaintiff is no longer employed.  Courts have even recognized conduct of coworkers or other third parties to state a claim for retaliation against the employer, if the plaintiff reasonably believed the employer was somehow responsible for it. An employer can even be liable for failing to take steps to prevent retaliation.

4.  Retaliation can extend the time to file a claim or suit.  In California, a discrimination claim must be filed within a year (or so) of the alleged discrimination.  (It can be shorter elsewhere — check with a local lawyer or the EEOC itself if you’re thinking of filing.) But retaliation, almost by definition, does not occur until after the underlying discrimination has occurred.  Each time an employer engages in allegedly retaliatory conduct, it potentially opens up a new window of time for the plaintiff to sue.

5.  Retaliation hurts employers as much as employees.  Employers are required to take reasonable steps to prevent discrimination and harassment, and to respond when they do occur.  It’s very hard to do that if the employer doesn’t know what is going on on the ground.  And the employer won’t if the word gets out that the normal response to complaints is to shoot the messenger.

The best remedies for retaliation risks?  Respect, response, and follow through.

1.  Respect employees who complain about problems in the workplace.  Complaints are an opportunity to improve morale and productivity as well as to limit the risk of a lawsuit.  Take it, because if you don’t, the next thing to come knocking is probably the process server.

2.  Respond to complaints immediately.  Commence an investigation.  Hire a consultant to help if you need it.  Document everything that is said.  Ensure all participants in the process that retaliation will not be tolerated.

3.  Follow through with the complainant and all involved in the investigation to ensure no retaliation is happening.  If it is, shut it down with formal warnings (this is not the time for an informal verbal coaching) or other discipline if warranted.  Then check back in again with everyone in 30, 60, and 90 days.

Avoiding retaliation claims is just as important as, and perhaps becoming more important than, steering clear of discrimination and harassment in the workplace.  Employers, keep your eyes on both, or it will be just as bad as if you didn’t watch either.

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