Presented by: Matthew S. Brick Maria E. Brownell Brick Gentry, P.C.

Transcription

1 Presented by: Matthew S. Brick Maria E. Brownell Brick Gentry, P.C.

2 Two Rules for Today: Rule #1 No Good Deed Goes Unpunished!

3 Two Rules for Today: Rule #2 If It Wasn t Written Down, It Didn t Happen!

4 Retaliation An employer may not "retaliate" against an individual for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. 4

5 Retaliation The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, and disability, as well as wage differences between men and women performing substantially equal work, also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding. 5

6 Retaliation In addition to the protections against retaliation that are included in all of the laws enforced by EEOC, the Americans with Disabilities Act (ADA) also protects individuals from coercion, intimidation, threat, harassment, or interference in their exercise of their own rights or their encouragement of someone else's exercise of rights granted by the ADA. 6

7 Retaliation Historically viewed by the EEOC as one of the most serious forms of misconduct by employers. Every major employment law contains an antiretaliation provision.

8 Claims on the Rise Legislative and case law developments have broadened the scope of protection. Punitive damages are available. Retaliation claims have a higher success rate. Retaliation claims have become the tail that wags the dog in a discrimination suit.

9 Elements of a Retaliation Claim In order to establish a prima facie case of retaliation, a plaintiff must prove that: He or she engaged in a protected activity; The employer took adverse action; and There was a causal link between the two events.

10 Legally Protected Activity Title VII s anti-retaliation provision states: It shall be an unlawful employment practice for an employer to discriminate against any of his employees... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

11 Protected Activity Opposition Clause Provides the broadest protection. Includes conduct outside of EEOC charges and court proceedings, such as informal complaints. Participation Clause Applies when individuals file formal discrimination charges with the EEOC or other enforcement agencies. Applies when individuals assist or participate in agency investigations and court proceedings.

12 Protected Activity Examples of Opposition: Threatening to file a charge or complaint Complaining to anyone about discrimination against oneself or others Refusing to engage in discrimination Requesting a reasonable accommodation

13 Protected Activity Examples of Participation: Filing a formal charge with EEOC Assisting in an agency proceeding or investigation Engaging in court proceedings

14 Protected Activity Opposition v. Participation Protection: Good faith, reasonableness standard Disclosure of confidential information Refusal to perform work Lying in the course of an investigation

15 Adverse Action What is a materially adverse action? Burlington Northern v. White, 548 U.S. 53 (2006) Adverse employment actions are not limited to discriminatory actions that affect the terms and actions of employment. Employers can effectively retaliate by causing harm outside the workplace. An employee only needs to show that the employer s action might dissuade a reasonable worker from making or support a charge.

16 Examples of Adverse Action Denial of promotion, denial of job benefits, demotion, suspension, discharge, negative evaluations? Adverse Action (EEOC Guidance Manual) A supervisor who hides an employee s purse because it was unsecured, and took an abandoned recycle bin to make a point about the need to return the bins directly to work? No Adverse Action (6th Cir. 2011) A sales representative whose office access, voice mail and computer network access were disabled hours after she complained of sex discrimination? Adverse Action (M.D. Tenn. 2011)

17 Causal Link Mixed-Motive v. But-For Causation Univ. of Texas Southwestern Medical Center v. Nassar, 133 S. Ct (June 24, 2013): Title VII retaliation claims must be proved according to traditional principles of but-for causation. Plaintiffs must show that the causal link between the injury and the wrong is so close that the injury would not have occurred but for the act. Title VII claims are now harder for plaintiffs to prove

18 Causal Link Timing is highly litigated. Lack of knowledge of protected activity by decision maker severs connection. Gollas v. Univ. Texas Health Sci. Ctr. at Houston, 425 Fed. Appx. 318 (5th Cir. 2011). No causal connection if adverse employment action would result absent protected activity. Laing v. Fed. Express Corp., 703 F.3d 713 (4th Cir. 2013).

19 Limitations on Retaliation Claims HR Professionals and Retaliation The Manager Rule An HR professional s concerns must cross the line from performing typical job duties to an employee lodging a personal complaint.

20 Limitations on Retaliation Claims UTSW v. Nassar Dr. Naiel Nassar, a medical doctor alleged that the hospital retaliated against him after complaining of harassment. Jury instructed that retaliation claims, like discrimination claims, require only a showing that retaliation was a motivating factor for the adverse action, rather than the butfor cause. Jury returned a verdict for Dr. Nassar and the Fifth Circuit affirmed. US Sp. Ct. (in a 5-4 decision) overturned and held that retaliation claims require action to be the but-for cause.

21 Hypothetical Jane and John are engaged to one another and work for the same company. Jane files a charge of discrimination with the EEOC alleging that her supervisor discriminated against her on the basis of her gender. Three weeks after the employer learns of the EEOC charge, John is fired. John then files his own EEOC charge alleging that he was retaliated against because Jane, his fiancé, filed an EEOC charge. Does John have a claim?

22 Hypothetical YES - Thompson v. North American Stainless, 131 S. Ct. 863 (2011) Did John engage in protected activity on behalf of himself or Jane? Associational retaliation Where do we draw the line? (e.g., Girlfriend? Close friend? Co-worker?) Supreme Court declined to identify a fixed class of relationships for which third-party reprisals are unlawful. A close family member will almost always meet the standard.

23 Minimizing Retaliation Claims Have an Anti-retaliation policy Update it to make it more robust Distribute it upon hire and at regularly documented intervals Train Supervisors on the policy Upon hire, promotion, and at least annually and document attendance Address concepts but also provide tangible examples

24 Minimizing Retaliation Claims Partner HR with Management (sometimes assisted by legal counsel) Consider internal vs. external investigator Thoroughly and fairly investigate and adequately document

25 Minimizing Retaliation Claims Take the alleged discriminator/harasser out of the decisional loop for any action that could be deemed retaliatory Check in with the complaining employee during the investigation and thereafter Guard against repetitive/petty documentation which might be construed as building a file in retaliation

26 Minimizing Retaliation Claims Pause and reflect before implementing any decision that could be construed as retaliatory. Consider temporal proximity. A paper trail that accurately reflects that the company has given the employee the benefit of the doubt will contribute mightily to a positive result.

27 EEOC Charge Statistics

28 Retaliation Statistics EEOC received 32,690 charges of retaliation discrimination based on all statutes enforced by EEOC and recovered more than $111 million during the last reported year. The number of charges compared to 26,663 charges a few years prior (a 22.6% increase). 28

29 Study of Iowa Verdicts The Faegre law firm Reviewed all Iowa employment trials for last ten years. Every state and federal case that survived summary judgment was included in the study. The study included bench trials and jury trials. 134 total lawsuits over the 11 years Approximately 12 lawsuits a year; or Only one lawsuit a month. Plaintiff won approximately 60% of all trials. Mean award was $329,000; Median award was $179,000. 4/9/2015 ADK - Confidential: Do Not Disseminate 29

30 Termination Decisions Any subjective decisions will be highly scrutinized

31 Tips for Avoiding Potential Claims Watch for early indicators of exposure Scrutinize individual charges closely and resolve early when possible Be proactive with policies, procedures, and training Look at your own statistics Be careful and very specific when providing information/documents to the EEOC. Confine information to the entity at issue and not the entire company.

32 Questions? Matthew S. Brick Maria Brownell Brick Gentry, P.C Westown Pkwy, Suite 100 West Des Moines, Iowa