MANDATORY MANAGEMENT TRAINING ALERT: Following through on U.S. Supreme Court decisions first issued in the late 1990’s, the California legislature has now required that employers with 50 or more employees train their managers and supervisors in employment law. California joins numerous other states with similar legislative mandates, such as Connecticut, Colorado, Illinois, Maine, Massachusetts, Tennessee, Texas, Utah, and Vermont. In many of the states lacking statutory training requirements, federal and state courts have effectively mandated the same kind of employment law training in their jurisdictions.
CCG can help companies meet these requirements though a variety of in-person and e-learning management training alternatives. In addition to satisfying legal mandates, our training focuses on changing the management behaviors that create employment liabilities, and making certain that those changes last for the long term. See our website for additional information.
If you wish to receive more information, or a free copy of our Real World E-Learning™ Sampler, a 20 minute CD-ROM demonstrating some of our e-learning alternatives, please click here. |
SNATCHING DEFEAT FROM THE JAWS OF VICTORY
HOW EMPLOYEES ARE USING RETALIATION CLAIMS TO WIN,
EVEN WHEN THEY LOSE
Consider this all too common scenario.
An employee, Mary, claims that one of your most valuable managers, Joe, sexually harassed her. Joe denies the charge. Your attorneys conduct an investigation and advise you that there are no witnesses to corroborate either side of the story. You never liked Mary, and you want to stand up for Joe. In addition, you want to send the message that you are not going to roll over in the face of unsubstantiated allegations, so employees had best think twice before bringing such claims in the future. You decide to defend the case vigorously, and it ultimately goes to trial.
At the trial, Mary testifies that Joe repeatedly propositioned her, and threatened her job unless she gave in to his demands. Joe testifies that no such thing ever happened, and that Mary was trying to get back at him for failing to give her a raise. Another one of your employees, Sam, testifies on Mary’s’ behalf. Sam says he witnessed the sexual harassment. On cross examination, however, Sam acknowledges that Mary frequently complained about Joe’s failure to give Mary a significant raise. Sam also admits that Joe had disciplined Sam on a few occasions, and Sam thought that Joe had treated him very unfairly. Other witnesses testify that on several occasions, Sam was overheard saying that he would “get even with Joe” someday.
It takes two years and a ton of legal fees, but you win – a jury concludes that Mary did not prove her case.
A month after the suit is over, Mary and Sam put in for a promotion. They are qualified for the position. The VP in charge of the department in which both of them work asks Joe for his recommendation. Joe says that based on what they said in court, he does not trust either of them, and suggest the VP choose someone else. The VP is also of the view that rewarding them with a promotion would most definitely send the wrong message.
Mary and Sam get word that they did not get the promotion… and they file a claim with the EEOC.
Is there a law that says an employer has to promote people who filed or participated in bogus lawsuits? Is there a law that says an employer has to promote people it does not respect or trust?
No, there’s not. But there is something almost as bad – welcome to the world of the “retaliation” claim.
The Prohibition Against Retaliation: It’s Much More Than You Think It Is
There are numerous federal and state statutes that prohibit employers from taking or threatening, even implicitly, action which is adverse to an employee because the employee, in good faith, resisted or complained about unlawful harassment, discrimination or other misconduct. Most of these statutes also protect employees who, while not the target of the unlawful conduct, opposed it by, for instance, making reports or participating in litigation.
This principle seems sensible – employers should not be able to threaten or intimidate employees who have bona fide claims into foregoing their rights. When we train managers and executives, we have no trouble in getting them to buy into the concept that an employer cannot punish an employee for exercising his or her legal rights. It makes sense and squares with our concepts of fairness.
But what about the Mary and Sam situation, where an employee brings, and loses, a bogus claim? It is not as easy for managers and executives to accept the notion that an employer should be precluded from considering that fact when deciding who gets promoted, who gets a raise, or who gets the corner office. After all, character traits, like good judgment, loyalty and the ability work through conflicts, are important considerations when an employer makes judgments about which employees should move up the ladder, aren’t they?
Maybe so, but here is the law: so long as an employee brought his or her claim in good faith, the fact that the employee ultimately loses does not diminish the scope of the protection against retaliation to which the employee is entitled. You simply cannot hold it against the employee for having filed and pursued a claim. For instance, consider some of these recent retaliation claims:
- Robert Bianchi alleged that, while a Lieutenant in the City of Philadelphia's Fire Department, his co-workers and subordinates harassed him because they perceived him as being gay. Ultimately, the Department terminated Bianchi. Bianchi sued for sexual harassment – and lost. Bianchi, however, claimed that he was terminated not because he was bad employee, but for complaining about being harassed. The jury awarded Bianchi more than $1.2 million in damages, and the appellate court upheld the award.
- A federal court in San Antonio threw out Raymond Morantes's claim of discrimination against his employer, the Federal Aviation Administration. Thereafter, Morantes was passed over for a promotion. Morantes claimed that his managers passed him over because they were upset at his having sued them. A jury agreed, and awarded Morantes $500,000.
- Eunice Lafate filed a discrimination claim, asserting that she had been passed over for a promotion at Chase Manhattan because of her race. She lost. Thereafter, however, she claimed that she had been excluded from management meetings and given unfavorable evaluations because she had filed the claim. The jury awarded her $600,000.
Remember also that a retaliation claim can be founded on the allegation that the employer took adverse action against an employee because the employee participated in an employment-related lawsuit brought by someone else. Consider how far this tenet of law can be taken.
A receptionist at the Dillard Paper Company in Alabama sued the company for sexual harassment. The receptionist’s lawyer took the deposition of one of the company’s employees, Harry Merritt. Merritt admitted in the deposition that he had told the receptionist that a certain customer "sure is taken with you, why don't you take care of him sometime?" and he acknowledged subjecting the receptionist to repeated vulgarities. Dillard ultimately settled the claim and, shortly thereafter, fired Merritt. Merritt said his boss told him, "Your deposition was the most damning to Dillard's case, and you no longer have a place here."
Merritt filed a retaliation suit, claiming that he was wrongfully fired for giving truthful testimony in an employment suit. Dillard claimed that they terminated Merritt not because he testified, but because of the fact that he confessed to having engaged in conduct that violated Dillard’s policies.
The trial court dismissed Merritt’s case, but the appeals court reinstated it, and the suit was eventually settled. The lesson: virtually nothing related to an employee’s testimony or other participation in a claim can be used against them. There are fine (sometimes absurd) lines to be drawn here, which will require counsel. For instance, if Dillard had interviewed Merritt after the trial and asked him whether he had harassed the receptionist, and if Merritt answered truthfully in the interview, Dillard could have at least argued that it fired Merritt for what he told them in the interview, and not because of what he confessed to in the trial.
So What Do You Do?
Retaliation claims are on the rise. In 1993, retaliation was alleged in 15.7 percent of the charges the EEOC received. In 2003, retaliation was alleged in 27.9 percent of all charges the EEOC received — nearly double the percentage of a decade ago. Moreover, the damages for retaliating against an employee can be severe, including punitive damages.
Here is a prescription for minimizing retaliation claims, each component of which is, admittedly, easier said than done.
First, enact a clear non-retaliation policy, and aggressively train your managers and supervisors on what it means and how to implement it. It does no good to show that you enacted a policy unless you can also show that you trained those who were to implement the policy. In addition, make sure you consistently enforce the policy, and aggressively look for potential violations – exit interviews can be an effective way to determine if a retaliation claim is in the wind.
Second, make certain that you have a workable and updated complaint and investigation procedure, and aggressively train your managers and supervisors on what it means and how to implement it. If you have the right kind of complaint procedure in effect and an employee does not utilize it, you may have an effective defense under a growing line of judicial decisions. Increasingly, courts are ruling that if an employee has a gripe, and does not give the employer a chance to resolve it by using the employer’s complaint mechanism, the employee will lose the right to recover damages against the employer. However, the complaint procedure, and how you handle a complaint once it is made, must meet EEOC and other legal criteria. That is not easy to do, and you will need professional guidance.
Third, document, document, and document some more. There is nothing more frustrating than knowing you are right, and not being able to prove it. For instance:
- An employee claims that you fired him because he brought a discrimination claim. In truth, you fired him because he has been a discipline problem for months and has been frequently warned. He denies that. How are you going to prove your side of the story? If you have the right kind of documentation – evaluations, warning notices – you will likely win. Otherwise, you will surely lose.
- You meet with your managers and decide to fire one of your employees next week. Before the termination occurs, the employee goes out on FMLA leave. He gets fired, and claims that the termination was related to his decision to take leave. If you can prove the decision had already been made, you win; otherwise, you may well lose.
Documentation is an art. Not every document will be admissible in court, and depending on what and how you choose to document key events, sometimes documents can hurt you more than help you. Again, training is the key.
Let us know if we can help.
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