Retaliation claims have become the leading cause of
action for employees. In fiscal year 2010, retaliation charges filed with the
EEOC nationwide accounted for 36.3% of all filings, at 36,258. There are three
essential elements of a retaliation claim:
What makes retaliation claims so common? Well, it's not
so much because they are are easy for employees to prove. In my opinion, it's
because retaliation claims are tough for employers to disprove prior to trial.
A little inconsistency goes a long
v. Freedom Bank, [an enhanced version of this opinion is available to lexis.com
subscribers] the Seventh Circuit issued a 12-page opinion in which
it reversed the lower court and determined that a former bank employee had a
triable retaliation claim against Freedom Bank, her former employer. However,
you don't need to read all 12 pages. The opening paragraph of the opinion says
Only seven months after Freedom Bank
recruited Belinda Egan to serve as one of its vice presidents, the bank fired
her. She had no performance issues, no attendance problems, and no complaints
against her. What she did have, though, was dinner shortly after she began with
a member of the bank's board of directors. The board member told her the
fantasies he had about her, and she declined his advances. Egan complained to
the bank's Human Resources officer that the board member had sexually harassed
her, and the board member resigned. Shortly after that, the person named as the
bank's new president told its then-president that he heard Egan had done some
thing that she should have been fired for. And about two months after the new
president assumed office, Egan was fired.
Based on the foregoing, the court concluded that a jury
might credit the bank's stance that the new president eliminated Egan's
position simply to reduce inefficiencies. Or it might agree with Egan that the
bank terminated her in retaliation for her claim of sexual harassment. But that
would be up to a jury -- not the judge -- to decide. Therefore, the appeals
court reversed the lower court's grant of summary judgment in favor of the
Like I said, retaliation cases can be tough
for employers to disprove prior to trial.
Judges are not in a position to make credibility
determinations. They are not fact-finders. It does not matter if 5 people say
"A" and only one person says "B." If "B" is
plausible and suggests that the employer may have retaliated against an
employee who complained about unlawful harassment in the workplace, then the
jury is going to hear about and decide whether "B" holds up, even in
the face of five people saying "A". And guess what? If the employer
doesn't have the documentation to support "A," I don't care how many
people say "A," the employer has an uphill battle ahead because
jurors expect documentation from employers.
Ultimately, all it takes is the slightest ambiguity, the
smallest of inconsistencies in the employer's rationale for its adverse
employment action and, a retaliation claim is going to trial.
This article was originally published on Eric B. Meyer's blog, The Employer
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