Dear HR Executive:
It's been a year since a landmark Supreme Court decision (Burlington Northern & Santa Fe Railway Co. v. Sheila White) broadened the definition of "retaliation" and made it much easier for employees to sue. HR execs are obviously aware of its impact. In B21's most recent survey, they cited retaliation as the biggest legal threat they face (see survey results below).
Think about it. A troublemaker at your company files a completely bogus discrimination complaint and threatens to sue. Let's say he's over-40, has the emotional maturity of a teenager and can barely manage himself -- but he's convinced he got passed over for promotion to a management role because of his age. For the guy's boss, or for you in HR, a normal human reaction would be to get a little angry. You have an information highway of documentation on Mr. Over-40 showing that he's not management material. The courts will dismiss the case instantly. But here you are wasting your precious time thinking about and talking about his potential legal case against your company.
That anger you feel is precisely why retaliation cases are so scary. How likely would it be for Mr. Over-40's boss -- who's really annoyed by the lawsuit threat -- to, say, change Mr. Over-40's shift? Or ask him to take on some administrative tasks that weren't in his job description? Or "forget" to invite him to the Friday night bowling party? Any of these actions could give Mr. Over-40 ammunition for a retaliation case.
Here are the results of the B21 survey:
Q. In which area are you most concerned about being sued by an employee or former employee?
- Retaliation -- 32%
- Racial discrimination -- 16%
- FMLA -- 15%
- Age discrimination -- 12%
- Sex discrimination -- 12%
- Disability discrimination -- 8%
- National origin discrimination -- 1%
Here's an article from B21's newsletter Human Resources 21 that explains the Burlington Northern case and offers some advice for avoiding retaliation lawsuits. Read on.
Stephen Meyer
B21 Publisher
Worried about retaliation? Your peers certainly are
Why one-third of HR people consider it the biggest legal threat
I’m a bigger legal and compliance worry for HR pros than sex and race discrimination put together. What’s my name? Retaliation.
Since the U.S. Supreme Court’s Burlington Northern decision last year significantly widened the definition of retaliation, courts around the country have been giving more leeway to retaliation plaintiffs.
An employee suing for retaliation used to have to show the company fired, demoted, or otherwise downgraded his work status because he complained of discrimination. But under Burlington, the employee need only prove the company did something that would deter a reasonable person from complaining – and even a lateral transfer or a disappointing evaluation could qualify.
Even before Burlington, retaliation accounted for almost as many EEOC charges annually as sex and race bias each did – and with this decision on the books, the trend looks set to accelerate.
On the radar screen
In a new Business 21 poll, 32% of responding employers said they considered retaliation the biggest legal threat they face today – compared with 16% for racial discrimination and 12% for sex discrimination.
Worries about the FMLA and age discrimination accounted for 15% and 12% of responses, respectively. Disability and national origin bias were more minor concerns, at 8% and 1%.
Plaintiffs’ lawyers love retaliation because it gives them two bites at the apple. If they can’t prove discrimination, they can marshal all the same arguments again – plus whatever you allegedly did wrong after the discrimination complaint – to try to sell retaliation. And increasingly, the courts are buying.
Your worries don’t end with federal law. State laws permit retaliation suits by whistle-blowers and workers comp claimants, too.
Reminding managers
We have no magic charms to ward off these suits. But you may want to reemphasize these points with managers:
- Try not to discipline an employee who has just made an internal or external bias complaint. Two months is a reasonable amount of time to wait.
- Don’t discipline one employee more severely than others. Unequal discipline – especially within the same department or workgroup – can feed a retaliation charge.
- Don’t let co-workers victimize an employee who has complained about them as a “rat” or “stool pigeon.”