Local (and national) employers routinely receive notice from Fort Wayne’s Metropolitan Human Relations Commission or the EEOC that they are alleged to have engaged in retaliatory activity against an employee, and must address this issue, as well as the attendant race, age and sex charge. Unless you have qualified employment law counsel, businesses frequently skip over this segment of the charge when they respond to the relevant administrative agency.
Prudent employers know retaliation is against the law, but how many really know what that term means? A plaintiff, your former or worse yet, your current employee, has to prove three things: 1. they were engaged in legally protected activity; 2. they suffered adverse employment action; and 3. there is a causal connection between the alleged legally protected activity and the so-called adverse action.
Despite the employer’s awareness of the prohibition of retaliation, the number of retaliation charges continues to escalate, many times as an add on to the specific Title VII, age claim of alleged FMLA violation. As a fair warning to local employers, many administrative charging parties or plaintiffs in court may very well have their underlying discrimination claim dismissed yet still win their retaliation claims by demonstrating that they suffered an adverse employment action.
To state a claim of retaliation under Title VII of the Civil Rights Act, the Americans With Disabilities Act or the Age Discrimination in Employment Act, administrative agencies and courts around the country have expressed a variety of opinions on what an adverse employment action is for the purpose of a retaliation claim. It is clear that employment decisions such as firing or demoting an employee, or denying an employee a promotion after they have demonstrated that they have engaged in protected activity is unlawful. However, the EEOC defines adverse employment action very broadly so as to include any adverse treatment that is reasonably likely to deter protected activity.
What actions can you undertake to stay on top of this?
Publish your policy prohibiting discrimination (in all applicable workplace languages) on your bulletin board, online and most importantly, in your employee handbook and add to it that employees who might lodge discrimination complains to come forward if they believe they are being retaliated against because of their affirmative action of complaining about terms and conditions of employment;
Keep discrimination complaints confidential and by virtue of this action, the ensuing retaliation claim. The original in-house administrative agency complaint/grievance should be confidential and on a need to know basis. Your position is prohibited; and
You will take employment action against a complaining employee only for legitimate business purposes. You need to review your handbook, consider what circumstances have occurred in the past under which you have issued discipline and consider whether you are in accord with such prior discipline or you should deviate from it.
Bottom line, you need objective and well-documented examples of unsatisfactory conduct, which violated the dictates of the handbook/union contract to legitimize your position.