1. FEATURE STORY:
U.S. SUPREME COURT'S RETALIATION RULINGS LAND ON SIDE OF EMPLOYEES
Last month, the U.S. Supreme Court made back-to-back decisions that allow employees to file retaliation claims under two laws that do not expressly state this right. In doing so, the Court opened the door for more employees to claim retaliation. Two years ago, the Court broadened employees' rights to file retaliation claims under Title VII. With rulings like these, employers have great incentive to make writing and enforcing anti-retaliation policies a priority.
On May 27, the Supreme Court determined that federal employees may assert a retaliation claim under the Age Discrimination in Employment Act (ADEA). The right of private employers to file retaliation claims was written into the Act; the provisions of the ADEA related to public employers, enacted seven years later, broadly provide a prohibition against "discrimination based on age," but do not explicitly mention retaliation. The High Court ruled 6-3 that the phrase "discrimination based on age" includes retaliation based on the filing of an age discrimination complaint. (Gomez-Perez v. Potter, No. 06-1321)
The Supreme Court also decided that Section 1981 of the Civil Rights Act of 1866, which is a post-Civil War statute that gives "[a]ll persons…the same right…to make and enforce contracts…as is enjoyed by white persons," encompasses retaliation complaints. (CBOCS West, Inc. v. Humphries, No. 06-1431) Bad news for small businesses: Those that have fewer than 15 employees and do not fall under Title VII are subject to Section 1981, which applies to all employers. More bad news for employers: Section 1981, unlike Title VII, does not place a cap on damages.
In 2006, the Supreme Court ruled that employees could have a valid retaliation claim even if they do not experience an economic loss or ultimate employment decision, such as termination or demotion. In this case, a job transfer and a 37-day unpaid suspension, for which the employee eventually received back pay, were deemed illegal employment actions because they could discourage an employee from bringing discrimination charges. (Burlington Northern & Santa Fe Railway Co. v. White, No. 05-259)
With the Supreme Court taking a broad stance on employment retaliation, employers should take the following steps after an employee has filed a discrimination, harassment, or safety complaint in order to protect the company from the additional threat of a retaliation charge.
Avoid knee-jerk reactions. An aggressive reaction to a complaint could be seen as retaliatory in nature. Treat complaints as an opportunity to correct mistakes and avoid liability, and not to automatically consider the employee as a troublemaker. Prevent further incidents of mistreatment. You must be evenhanded when separating employees who are at odds. Be careful not to penalize the complainant. Implement your organization's system for receiving and investigating complaints. Keep the investigation focused on the complaint, and avoid getting sidetracked by the complainant's performance. Even if your investigation reveals shortcomings in the employee's performance, keep the investigation centered on the allegations at hand. Deal with the performance problems separately. Orally review the entire complaint and your organization's retaliation policies with employees and subordinates when a complaint is filed, when an investigation is concluded, and as often as needed in between. Don't punish an employee who files an unfounded complaint or grievance. Remember that even if an employee's complaint is groundless, if it was filed in good faith, he/she could still be protected against retaliation.
If you are not confident that your executive and management staff understands how easily an employee can perceive retaliation in an adverse employment action, they need a refresher course in Avoiding Workplace Retaliation Lawsuits.
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2. CATHIE'S CORNER:
EMPLOYEES WHO PLAY THE RETALIATION CARD
I've talked recently about perceived discrimination stemming from employees' confusion over what is actually protected by law. I hadn't planned to do any more on the topic, but a reader's response got me thinking in another direction. Sometimes, the reader pointed out, people who have made a complaint to HR or their supervisor think that they are completely immune from any kind of adverse action now, and that they can behave in any way they like, break any policies they want, because they are protected by "whistleblower" laws. They think that, once they've filed a complaint, any kind of adverse action taken against them is retaliation and is illegal...Continue the story.
Catherine Bannon is an HR consultant in Marshfield, MA (catherine.bannon@gmail.com). Bannon worked for 10 years in HR management before starting her consulting practice.
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4. FREE REPORT:
GENETIC INFORMATION NONDISCRIMINATION ACT (GINA) BECOMES LAW
Check out the Free Report, "Genetic Information Nondiscrimination Act (GINA) Becomes Law," which summarizes new legislation that was signed by President Bush on May 21, 2008. The report contains a synopsis of all three parts of GINA: nondiscrimination provisions related to employers, nondiscrimination provisions related to health plans, and an amendment to the Fair Labor Standards Act. Specifically, learn what employment actions employers can and cannot take when it comes to the genetic information of their employees and employees' family members.
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