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
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
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,
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
John F. Birmingham
On March 29, 2011, the Supreme Court heard oral argument
in Dukes, et al v.
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
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.
The Foley and Lardner Trail to “Emergency” Fiscal Legislation http://bit.ly/gV5NdN To understand what is happening in Wisconsin bow under Gov Walker, read the "Shock Doctrine" by Naomi Klein.