Posted 11-08-2012

Did you know—Retaliation complaints have more than doubled over the last ten years. In fact, over the past three years, retaliation complaints are now the #1 claim filed at the EEOC, comprising almost 38% of the filings in 2011, and that percentage has been increasing every year. Some firms report that now about 3/4 of all discrimination and harassment lawsuits filed against their clients also include retaliation claims.

Why the increase?—Quite frankly, these complaints are easier to prove than traditional discrimination or harassment claims. To prove retaliation, an employee must generally establish only that (1) he engaged in a protected activity, (2) some adverse employment action followed, and (3) a causal connection existed between the protected activity and the adverse employment action. The latter is usually only established by a short interval between the first two. The U.S. Supreme Court in the 2006 Burlington Northern case dramatically lowered the bar for what constitutes “adverse action” when it held that, in addition to things like termination, demotion, etc., any employer conduct that “might well have persuaded a reasonable employee from making or supporting a charge of discrimination” would be enough. In 2009, the Court further expanded the reach of this claim, when it held in Crawford v. Metropolitan Government of Nashville and Davidson County, that, “protected activity” including not only filing a complaint oneself internally or externally, or assisting or helping someone else do so, but also something as simple as answering questions during an internal investigation of another employee’s complaint!

Another reason is that juries are more predisposed to believe these claims, than they are discrimination and harassment claims where there is no direct evidence of intent. Jury surveys and studies have shown the people understand that it is simple human nature that one who is complained about, will be upset or angry about it and therefore more likely to strike back.

Therefore, it becomes more important than ever that HR and managers know how to manage employees who have complained. One very important tool in doing that is to never delay initiation and documentation of performance management, and for managers and HR to be engaged in such performance management in timely fashion. In the Breeden case in 2001, the Supreme Court affirmed that an employee could not show “causal connection”, if the employer demonstrates that the adverse action was contemplated before the protected activity occurred. Performance management initiated after protected activity is a red flag, and although the employer can still show that the adverse action was deserved, the timing can be a very tough fact for the jury to overcome in their deliberations.

What this means to you:

It is more important than ever that HR and managers know how to properly manage performance, and document doing so, and remain engaged together so that they know before initiating adverse action whether an employee has engaged in anything that can be viewed as “protected activity.” Proper training, as always, is the key.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.