Employment Retaliation Claims Are Skyrocketing

And to ferret out false charges and to stop retaliation claims early on, experts stressed the importance of immediately and aggressively investigating allegations, even incurring the expense of outside investigators in appropriate cases.

Click here to read story on one example of how an aggressive investigation squelched a false claim.

Explaining The Rise

Retaliation claims are increasing in part as a result of the push to educate employees about their workplace rights through anti-bias education programs sponsored by their employees. Also, retaliation is easier to prove than the underlying discrimination claim from which it stems.

Employment defense attorney Bret A. Cohen said, “Plaintiff’s lawyers have realized a retaliation claim has the same teeth and the same potential monetary damages as the underlying claim, but they’re easier to prove.”

James M. Paul added: “Once there’s protected activity, the employee can claim there is a cause-and-effect relationship between that protected activity and an adverse job action.” Retaliation claims are more likely to be filed when the protected activity has taken place close in time to an adverse job action, such as a demotion or termination, noted Paul, who practices in St. Louis at Lathrop Gage and is chair of the labor and employment law committee of the Missouri Bar Association.

Federal law appears to be making it harder for employees to survive summary judgment of a discrimination claim, he noted, while recent EEOC and Massachusetts Commission Against Discrimination decisions have allowed retaliation claims to go forward even if the underlying discrimination claims are dismissed.

“If you can establish the proximity of time of the complaint and the [job] event, often that’s enough to avoid summary judgment. That’s not a lot. That’s objective,” said Cohen, partner at Mintz Levin in Boston.

In contrast, proving an underlying discrimination or harassment claim involves a lot of “he said, she said” testimony that might never yield the truth during trial, so the claim is dismissed.

To have a retaliation claim stick, an employee must engage in some sort of protected activity, such as making a complaint in the workplace or testifying in the investigation of a complaint.

Where employers get themselves into trouble is when they treat the complaining employee differently from other employees, Paul said.

“A lot of employers … disregard the fact that the employee engaged in protected activity and fall into the trap of not having a good explanation for the adverse action or termination or layoff,” Paul noted.

“Or, they swing the other way and protect an employee to the extreme and don’t take any action against them even when there should be,” Paul said. “You should treat them the same as any employee that does that type of activity.”

Being part of an investigation or protected activity “doesn’t mean [employees] are immune from all employment policies and procedures,” he stressed.

“An employer can take action against an employee for whatever reason, as long as it’s not an illegal reason,” Paul said. But when an employee is in a protected class, “it forces the employer to come up with evidence for why the adverse action was taken.”

Jonathan Greenbaum of Nixon Peabody in Washington, D.C., is working on a case where an employee being investigated for sexual harassment complained that he himself was harassed. Ultimately, as a result of the investigation into the claim against him, he was terminated. He then filed a retaliation claim saying the action was taken in retaliation for his exercising his rights, Greenbaum said.

Greenbaum has also handled a situation in which an employee who was being considered for termination filed a retaliation action and has used it as a bargaining chip to get a severance agreement despite having no damages because she has not yet been fired.

Detecting False Claims

Charles Szymanski of Markowitz & Richman in Philadelphia advised in-house counsel to be more suspicious of claims filed by an employee who is not in a protected class. “That’s a generalization – a white male could have a legitimate claim,” but it is far more likely that someone in a protected class will have a meritorious allegation, he said.

In-house counsel should be wary of claims that charge violations of most employment law statutes, he added.

“I would treat a detailed claim far more seriously,” Szymanski said. “A gender claim that has a lot of facts and specific allegations, [likely has more merit] than someone citing every type of employment statute.”

All that comes with the caveat that every fact situation is different and every claim should be investigated, he noted. But, “when you see people with generic claims, worry less about those and more about a protected class and a detailed fact situation.”

Proactive Strategies

Employers should document all problems that arise during the employment of all their employees, experts stressed, because negative job actions are more likely to be upheld by a court if the employer has the documentation to back them up.

Also, if an employer can point to documentation in another employee’s personnel file explaining an exception made to a termination policy, that could insulate it from the charge that it treated the complaining employee differently than other employees, Cohen noted.

Another tip is to treat all employees – whether part of a protected class or not – exactly the same and apply your policies consistently.

When negative job actions are necessary, “try to remove from any context what [protected activity] an employee might have [engaged in] and step back and look at it completely as neutral as you can and ask, ‘What would I do with any other employee who didn’t engage in protected activity?” Paul suggested. “Whatever you would do for the other employer you should do for this particular one, knowing the one that has engaged in protected activity may be more likely to file a charge of discrimination or a claim.”

Also, it’s important to foster open and honest communication with employees, according to experts. An employee who is told and clearly understands why an adverse job action is being taken is less likely to file a discrimination claim.

“If you don’t give the employee a reason for their adverse action, they, or the attorney they’ve hired, are left to speculate. ‘They didn’t give me a reason so it must be because I complained about harassment,’” Paul said. “If an employer gives a reason for an adverse action, sometimes, although not always, the employee will be honest with him or herself and understand they’d done something wrong.”

Whether the job action was taken because the employee had a high number of absences or the company had financial reasons for a layoff, or some other legitimate reason, employees should be told.

“Employers are scared to give the real reason, [then] they look suspicious because they don’t say what the real reason is,” Paul continued.

Other Practice Tips

Szymanski suggested in-house counsel familiarize themselves with the Farragher/Ellerth Supreme Court decisions that lay out for companies a roadmap for how to insulate themselves against claims. The decisions require companies to have sexual harassment and bias policies in place and to take prompt action if an employee makes a complaint.

They also protect companies when an employee knows of wrongful activity taking place but neglects to report it on the basis that employers cannot know about wrongful activity unless someone brings it to their attention.

It’s important also to distribute anti-discrimination policies every year, and have employees sign it, Cohen offered. It’s also useful to conduct regular training programs, he said.

Cohen also suggested spending the few thousand dollars it will cost to have a third party investigate a workplace claim.

Employers don’t have to be right in defending against a retaliation claim, they only need to show that they did the right thing, had the right process in place to investigate claims, took the complaint seriously and responded to it appropriately, he explained.

By having a third party investigate the allegation, if the accuser brings a claim later on, the company can tell the court that it spent the money to investigate the claim and acted based on the findings of that investigation.

“You can say, ‘We did everything we could, even if we didn’t get it right, we did everything we could to get it right,’” Cohen said. “Be aggressive. Get in it and be aggressive about the investigation and the position you take.”

Another idea is to require departing employees to sign a release that waives any future claims they have against the employer, in return for a severance package, said Greenbaum.

“Maybe 10 years ago it was only for executive-level employees, but now you’re finding it for all employees because employers don’t want to be involved in any litigation because of the expense,” he said.

Sending A Message

Conducting investigations into complaints lodged by employees not only complies with the law, but also sends a strong message to employees who would never file a false claim as well as those who might.

For one client, Cohen helped to uncover a false claim early on. No employee has filed one since, he said.

“The reason is that they know we’re going to be aggressive. If there is discrimination, we’re going to be just as aggressive on the other side. We sent a strong message that we are going to seriously investigate these claims, and if you lied, you’re going to pay the price,” Cohen observed, noting that employees, at least in Massachusetts, are not protected from making false claims.

“The best thing you can do is get all the facts together as fast as you can so you can make a decision about whether it happened or not,” he continued. “You don’t want to hear about this case as it develops. My recommendation is to litigate them to the end. It sends the wrong message to people at the organization when you capitulate when nothing really happened.”

(Questions or comments can be directed to the editor at: [email protected].)