Foley & Lardner Labor and Employment Law Weekly Update (Week of April 11, 2011)

Foley & Lardner Labor and Employment Law Weekly Update (Week of April 11, 2011)

Avoiding Liability for Retaliation

by Bernard J. Bobber

Retaliation claims are proliferating and are unlikely to subside anytime soon. The EEOC reported that in its last fiscal year, retaliation claims were the most common type of claim asserted in new charges. Some 36 percent of the nearly 100,000 charges filed with the EEOC in its FY 2010 asserted a claim of retaliation. During its current term, the U.S. Supreme Court has continued a trend of issuing rulings that expand anti-retaliation rights of individuals - thereby expanding the risks to and demands on employers. For example, in the March 28, 2011 edition of Legal News: Employment Law Update, we reported on the Supreme Court's ruling in Kasten v. Saint-Goben Performance Plastics Corp., in which the Court ruled that an employee was protected from retaliation even though he had raised his wage complaint only internally and had not filed a claim with any agency or court. In the January 31, 2011 edition of Legal News: Employment Law Update, we reported on the case of Thompson v. North American Stainless LP, in which the Court ruled that an employee who alleged he was fired in retaliation for his fiancée's filing of a discrimination complaint against the same employer.

So what can an employer do to minimize the risk of being the target of a compelling claim of retaliation? Here are just a few steps employers should consider taking.

First, educate supervisors about retaliation. It appears employers generally have not done nearly as good of a job educating and training supervisors on retaliation issues as they have in training on sexual harassment. Yet, there are many more retaliation charges filed than sexual harassment charges. Good training should be more comprehensive than this, but here are some areas that employers should cover when training on retaliation issues:

Who is protected?   Generally assume that any current or former employee who does any of the following can be protected from retaliation:

*       Asserts a claim that he/she or others are victims of some discrimination, wrongful harassment, retaliation, or wage violation, regardless of whether they assert that claim in court litigation, a filing with the EEOC, DOL, or other state or federal agency, or merely with the employer

*       Provides information to the employer in relation to its investigation of some discrimination, harassment, or retaliation

*       Testifies or other provides information in court litigation or agency proceedings involving a claim of discrimination, harassment, retaliation, or wage violation

*       Any other employee who has a close relationship with an employee who falls in to any of the categories above

NOTE: The person raising the claim need not be correct in that the issue about which he or she is complaining actually constitutes a legal wrong, so long as he or she has a good-faith belief that it does.

From what are they protected? Generally, they are protected from any actions taken against them to punish them for engaging in any of the protected activities described above, including:

*       Adverse decisions such as firing, demoting, or cutting pay

*       Negative (including passive-aggressive) treatment that would deter a reasonable person from engaging in similar protected activity for fear of suffering the negative treatment, such as excluding the complaining employer from meetings or work-related information, or generally shunning the employee

Second, be sure to oversee any discipline or other adverse decisions involving a person who has engaged in protected activity as described above. While protected employees are not immune from discipline or the application of the employer's regular practices and procedures, employers should ensure that any disciplinary or other adverse decisions involving protected employees are reviewed closely to ensure they are sufficiently supported by facts and are otherwise proper, and not influenced by any retaliatory motive.

Third, give clear directions. To nip possible retaliation in the bud, emphasize to any complaining employees they should report back immediately if they perceive any mistreatment. Tell supervisors involved with a protected employee to play it straight with the complaining employee. In other words, conduct business as usual. Supervise, but do not punish, even passive-aggressively.

While no plan of action can entirely insulate an employer from a retaliation claim being asserted, the three steps described above will help minimize the risks of the employer having liability for retaliation.


Skepticism Pervades Dukes v. Wal-Mart Supreme Court Oral Argument

by John F. Birmingham

On March 29, 2011, the Supreme Court heard oral argument in Dukes, et al v. Wal-Mart, a closely watched case that promises to provide guidance in the employment class action arena. The Court will decide whether a federal court in California properly certified a national class of more than 1.5 million current and former female employees alleging the pay and promotion practices of the retail giant discriminated against women.

The oral argument was lively, as the justices peppered each party's attorneys with questions on two major issues: (1) whether Wal-Mart's alleged gender-biased culture and subjective decision-making could support a commonality finding necessary for class certification; and (2) whether a class action, which includes a back-pay request, was proper under the federal rules and, concomitantly, whether Wal-Mart could obtain due process.

Interestingly, there appeared to be at least some gender divide in addressing the commonality issue, with Justices Ginsberg, Sotomayor, and especially Kagan expressing more openness to establishing commonality based on a policy of subjective decision-making. Other Justices doubted this approach, with Justice Roberts asking how many examples of subjective discriminatory decision-making created a policy upon which to base a class action. Justice Scalia questioned the internal logical inconsistency of the employees' theory, remarking that the complaint faced two directions and that he was being "whip-sawed" by their arguments that a corporate culture controlled all decisions but that individual supervisors were allowed to exercise unfettered subjective decision-making. Other Justices questioned whether employees' proposed approach would allow a class action against all companies based only on a showing of a statistical disparity between male and female employees.

There appeared to be more consensus on whether the proposed class action could proceed under the more easily satisfied standards of the federal rules (in particular, Rule 23(b)(2)) when employees are seeking back pay. Several Justices, including perhaps most aggressively Justice Sotomayor, expressed skepticism that employees' proposed formula-based damage approach would give Wal-Mart the opportunity to present individualized defenses necessary for due process.

Sixty minutes transpires quickly in a case of such magnitude involving multi-layered issues bordered by shades of gray, making prognostication a foolish endeavor. However, we cannot help ourselves. It is very unlikely that the Court will affirm the Ninth Circuit's opinion certifying the class in its entirety. It is likely that the court will not allow the class to proceed under Rule 23(b)(2), at least with respect to the formula-based damages approach. Finally, the commonality question may yield separate concurring and dissenting opinions illustrating the differences of opinion regarding the degree of specificity required. Therefore, there will be some guidance, but our bet is that this will not be the last time that the Supreme Court examines the requisites for employment discrimination class actions. Stay tuned for future articles on whether our predictions come true.


  • 04-19-2011

The Foley and Lardner Trail to “Emergency” Fiscal Legislation To understand what is happening in Wisconsin bow under Gov Walker, read the "Shock Doctrine" by Naomi Klein.