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You Are Going To Face A Retaliation Claim — Deal With It

3.31.16

Numbers do not lie. It has become a standard part of anyone’s labor and employment law practice: take a discrimination complaint — whether it is before an agency or a court — and more often than not a retaliation claim is also involved in the mix. Typical example: “I complained, but was ignored. Then, they fired me.” Case law tells us a retaliation claim can be asserted, even if there is no validity to the underlying discrimination complaint.

Why The Number Of Retaliation Claims Keep Going Up
There are a number of interrelated reasons why the U.S. Equal Employment Opportunity Commission, other agencies and courts are seeing a steady increase in retaliation claims. First, employees are being asked to report problems they witness or experience in the workplace. Whether it is pursuant to an open door policy, an ethics or compliance hotline or a reporting mechanism for sexual harassment or discrimination complaints, we are effectively encouraging employees to become whistleblowers.

For example, the Ellerth and Faragher cases established a commonly known defense against harassment claims under Title VII, the Faragher-Ellerth defense. This defense is available to employers if they exercised reasonable care to prevent and promptly correct any sexually harassing behavior and the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

As a result, this defense incentivizes employers to develop strong compliance programs as an affirmative defense to hostile work environment cases. It is not a coincidence that we have seen more retaliation cases since Ellerth and Faragher were decided and more employers adopted proactive policies. The more we encourage employees to report alleged misconduct and file complaints, the more inevitable it becomes that there will be an increase in the number of people who use that mechanism. Those users are entitled to protection from retribution.

Second, there are a growing number of statutes that protect whistleblowers from retaliation. The thinking goes something like this: laws are needed to expressly prohibit companies from doing things we do not want them to do. Who is in a better position to keep an eye on what is happening at a company than the employees? These potential witnesses need to be protected from their employers; otherwise, these witnesses will not come forward. The best way to protect them is to make it unlawful for companies to get rid of these workers. If their jobs are protected, they will be more likely to come forward.

Third, if someone accuses you of doing something that is inappropriate, it is human nature to want to defend yourself. The more reprehensible the act, the stronger the urge to defend. However, it is a slippery slope from defense to vindication to retribution. “We have an old saying in Delta. ‘Don’t get mad. Get even.’” When D-Day says that to Flounder in “Animal House,” it is funny. When it appears in an interoffice email between two supervisors, it is a smoking gun admission that leads a jury to ask, “Can we award more than what the plaintiff is asking for?”

What To Do About Retaliation Allegations
How do we deal with this mushroom cloud of retaliation allegations?

First, as in-house counsel, you should know the circumstances under which these claims may arise. It is really amazing how many statutes out there protect employee complaining, witnessing alleged misconduct and whistleblowing. In addition to retaliation for making Title VII claims, there are statutes that protect employees from retaliation if they:

In addition to those statutes that span across industries to protect employees who complain or blow the whistle, there are several industry-specific statues. For example, truck drivers who report a dangerous vehicle or refuse to drive a dangerous vehicle are protected by the Surface Transportation Act. Though there are laws pertaining to multiple industries, there are more statutes addressing the health care industry than any other. One national statute, the Emergency Medical Treatment and Active Labor Act, protects physicians or hospital employees who refuse to transfer unstable patients or who report patient dumping.

Below are additional situations faced by health care employees that are covered by Texas statutes. Other states may have similar protections.

Some of these protections are broad, while others are limited. You should review the statutes in order to best serve the employer. If you are unfamiliar with any of these statutes or need additional clarification, it is wise to consult an attorney who specializes in labor and employment.

Once versed in the statutes, you should ensure the employer knows what types of employee activity are protected under law from retaliation. In addition, recommend the employer follow the tips below to mitigate risks of retaliation lawsuits:

Modern business owners and their in-house counsel can no longer ignore the fact that retaliation claims are part and parcel of the employment law mosaic with which they must deal. Just because their numbers are rising does not mean they should be feared. Instead, recognize employees have this additional avenue for contesting the employer’s adverse action against them. Even if the underlying discrimination claim has no merit, retaliation claims can have a life of their own.


This article was featured on Law360 on March 31, 2016.

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