By Mary Jane Smetanka
The most common discrimination claim filed with federal officials isn’t about age, sex, harassment, or pay. It’s about something that often follows the filing of a discrimination claim: retaliation on the job.
In 2015, about 45 percent of all charges investigated by the federal Equal Employment Opportunity Commission (EEOC) involved retaliation.
Last year, the EEOC issued new enforcement guidance on retaliation. It was the federal agency’s first clarification on what constitutes retaliation in almost 20 years, says Patricia Beety, League of Minnesota Cities Insurance Trust (LMCIT) attorney and defense litigation supervisor.
Beety and her staff will present a session on the topic at LMCIT’s 2017 Safety & Loss Control Workshops. The session will offer practical tips and guidance for cities on how to prevent and deal with workplace retaliation issues. With new federal guidelines that expand the definition of retaliation, she says, it’s crucial that city officials educate themselves on the issue.
“Retaliation is a claim that is very prevalent, and it’s important that city officials know how to make decisions about this,” Beety says. “It can potentially be a very big issue. These are some of the most expensive claims and the most potentially destructive to the work environment. Being aware of developments in the law and being sure of employment practices will reduce the likelihood of a claim.”
What is retaliation?
The EEOC defines retaliation as action taken by an employer against an employee for asserting rights that are protected by discrimination law. Retaliation can occur before or after a discrimination complaint is filed. But most often, allegations of retaliation come after someone has filed a complaint, acted as a witness in a complaint, or had other involvement with the complaint process. Retaliation claims can be filed even if a discrimination complaint is unsuccessful in the end.
Retaliation may include reprimanding a worker; giving them a performance evaluation that’s worse than it should be; transferring them to a less desirable job; subjecting them to verbal or physical abuse; making the person’s job more difficult; spreading false rumors; and increasing scrutiny.
A few examples of situations in which the U.S. Supreme Court has determined an employer retaliated against an employee include the following:
The new guidance from the EEOC is not unexpected, Beety says. The issue has been evolving in the courts for decades. With the new guidelines, the EEOC makes clear that it believes unlawful retaliation includes more than just actions that could affect an employee’s pay or job duties.
“For a long time, a lot of employers were saying it’s not enough to say my job is different; you had to show it affected your terms of employment, your schedule or pay, or that you were demoted,” Beety says. “Now it doesn’t have to affect your pocketbook. It just has to be tangible enough that it could dissuade a reasonable employee from participating in a discrimination claim.”
Employers also can’t punish someone for actions that occur before or without a formal complaint, the EEOC says. The protected rights of workers include actions like threatening to complain about alleged discrimination; refusing to obey an order believed to be discriminatory; requesting a reasonable accommodation for reasons of religion or disability; and talking to co-workers to collect information for a possible discrimination claim.
Current employees, job applicants, and past employees are protected from retaliation. Supervisors can’t refuse to hire someone because they were involved in a discrimination complaint, and can’t give someone a bad reference because they participated in a complaint. Even something that happens outside of work can be considered retaliation, the EEOC guidelines say, if it might discourage someone from participating somehow in a discrimination complaint.
However, retaliation doesn’t go as far as some people think, says Shoreview Human Resources Director Laurie Elliott.
“People take a general view, but under the legal definition, retaliation needs to follow a certain action [like the filing of a complaint],” she says.
With so much going on with retaliation law, “employers really have to pay attention,” Beety says.
In one Minnesota case handled by LMCIT, an administrative clerk complained that after she filed an EEOC claim against her city employer, her desk was moved away from a co-worker’s so that she was isolated in the office. She also claimed that she was not invited to lunch anymore and that her job performance rating was lower than it had been in the past.
In another LMCIT case, a female detective who had brought a discrimination claim against a police department complained that afterward, she was reprimanded for wearing moccasins on the job, which the police chief characterized as a violation of the department’s unwritten footwear policy.
“Her attorney argued that giving out formal discipline rather than having a simple conversation was an overreaction and an unlawful response to the discrimination claim,” Beety says.
Keep discrimination investigations private
In the City of Shoreview, Elliott says that when she does a discrimination investigation or talks to witnesses about a possible complaint, she explains that they cannot be retaliated against and tells them that if it happens, they should let her know. She also urges managers in affected departments to “keep an ear to the ground” for any rumblings of retaliation.
Keeping discussions about discrimination investigations private helps, she says. Conversations about those issues preferably should take place where the complaining employee or witness cannot be seen by other staff members. In smaller city halls, she says, meetings can be scheduled for an outside lunch or in private places like city council chambers with the door closed.
“To me, the fewer people who know who I’m talking to, the less chance there is of retaliation,” Elliott says. “That reduces the likelihood of retaliation taking place. Deal with only the players who need to know, and do your best to keep these conversations private.”
In smaller cities, it may be hard to prevent others from noticing an employee is talking with a supervisor or investigator. Elliott tries to give employees tools to deal with co-workers’ curiosity. “I ask them not to talk about what we’ve discussed, because I want to get unbiased information from any others I need to talk to,” she says.
“If someone asks them what’s going on, I tell them they can direct the co-worker to me.”
For Shoreview, dealing with retaliation is embedded in other policies like those on sexual harassment and other discrimination claims. When Shoreview’s workers are trained on discrimination policies, Elliott says, they are taught that the employer cannot retaliate if someone makes a complaint.
“We have an obligation to make sure that does not happen,” she says. “It’s a serious matter, and I present it that way, but with a sense of calmness. I ask people to just keep your eyes open, make sure nothing is going on with the employee and other employees, or the employee and managers. We try to keep it discreet and respond accordingly.”
The role of timing
Timing is critical in many retaliation cases. Beety represented a city in a case where a department head was terminated after he was investigated for misconduct on the job, including being physically abusive to subordinates. An outside investigator determined that repeated acts of violence in the workplace had occurred.
After the man was dismissed, the city was accused of retaliation. The employee claimed he had been terminated because he had raised issues about disability discrimination before the investigation, and that he was being punished for complaining. In the lawsuit that followed, the city denied the allegations and stood by the dismissal.
“Most cases are like that one,” Beety says. “There is a termination, and the employee will point to something that happened before or around the time of the termination and say that is the real reason they were fired.”
In this case, she says, a settlement was reached a week before the case went to trial.
Clear policies are key
Beety thinks that overall, Minnesota cities have done a good job in reducing employment claims. She recommends cities have policies in place so that employers and supervisors train people on what retaliation is and make it clear that it will not be tolerated.
Among the EEOC’s recommendations for employers are that they have a “written, plain-language anti-retaliation policy” with examples of what to do and not do, and manager and employee training on that policy. Top management must make it clear that retaliation will not be tolerated, the agency says.
Employers should give managers who have been accused of discrimination guidance on how to handle their feelings about the allegations when they are in the workplace. And if a discrimination case has been filed, employers should regularly check in with the people involved to see if there are worries about possible retaliation.
That way, Beety says, “If you’re ever challenged, you’ll be able to say, yes, we looked into it, we had a policy and this is what we did about it.”
Should an employee complain that he or she is being treated differently, cities need to recognize it as a possible retaliation case and investigate immediately, Beety says. If cities are not sure they can investigate claims themselves, she says they can call on the LMC Human Resources Department for advice and help.
Bringing in an outsider to do an impartial investigation may be wise if a city is small or if a claim is especially sensitive. LMC can provide information on qualified investigators who work with public employers such as cities. Also, city attorneys often have someone on staff who can do an investigation.
“There is not a single best approach for every workplace,” Beety says. “Adopting best practices does not protect the employer from liability. But following recommended practices and following steps in understanding how to develop policies and training will put you in a better place to deal with that.”
Mary Jane Smetanka is a Minneapolis-based freelance writer.
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