Show 02 ^__ Workplace Retaliation

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Beth Case: The Southwest ADA Center Podcast, Show Number Two.

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Beth:Hello, I'm Beth Case and welcome to the Southwest ADA Center Podcast. In this podcast, we bring you highlights of the full-length webcasts offered by the Southwest ADA Center. You can find out more information about the Southwest ADA Center and find a link to the full-length webcast on our website, at www.ada-podcast.com.

In this episode, we're going to hear exceprts from a webcast that was originally aired on July 12, 2006 entitled "Workplace Retaliation: Don't Shoot the Complainer -- What Employers and Employees Need to Know". This interview was conducted by Tajauna Arnold, although I don't believe you're actually going to hear her voice, sorry Tajauna! and the presenter is Colleen M. Regan from McGuireWoods, LLP.

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Colleen M. Regan: In order to understand workplace retaliation, where we need to start is to understand that there is a distinction between discrimination in the workplace and retaliation. Many people confuse the concepts and it's important that we keep them distinctin our minds.

Many laws, federal and state, prohibit discrimination in a variety of contexts, including in employment, and that means that the employer may not distinguish, differentiate or treat unfairly any employee on the basis of a protected classification such asrace, gender, national origin, disability. And those laws havebeen in place for a long time and have been the subject of muchlitigation over the years.

Many of those laws also prohibit retaliation when somebody complains about something and the employer reacts by taking a punishment or an adverse action against that person.

So with that separation of concepts in mind, I would like to talk today about what workplace retaliation is, how it frequently presents itself, give you a little understanding of the employee's perspective in a situation that might give rise to retaliatory conduct, how employers may regard situations and discuss some recent cases andtake your questions at the end.

First, I'd like to examine what is the dictionary meaning of retaliation. I think the impulse toward retaliation is probably as old as human kind. It means to get back at, to get even with, to get vengeance for or to return like for like or evil for evil, especially. And it's this kind of retaliatory impulse that we want to keep in mind as we talk about it today.

There is such a thing as legal retaliation in the workplace. We have to keep in mind that generally employers do have a right to control conduct in their workplace. They have a right to have a code of conduct, a Code of Ethics, rules, procedures, standards for which their employees have to work to. And if the employee doesn't live up to those standards, then they can be retaliated against in the form of discipline or termination or other consequences for bad behavior.

What we want to talk about today, though, is illegal retaliation and to set the framework for our discussion, the next little bit of my presentation is going to talk about the legal standards and definitions that apply to illegal retaliation in the workplace.

In a nutshell, an employee will suffer illegal retaliation if he or she is harmed as a consequence of exercising a legally protected right. Now, the sources of the rights can be found in a number of different places. There are many explicit authorities such as statutes that give an employee a right to be protected from retaliation, examples of these might be Title VII in the federal context which prohibits discrimination on the basis of race and national origin, age and gender. Also the Americans with Disabilities Act has an explicit protection against being retaliated against. There are also whistleblower laws and labor codes of various jurisdictions that give employees the right to be protected from retaliation.

Basically, wherever the government or courts want to encourage people to be able to come forward and report suspected wrongdoing by their employer, or to not chill a person's right to exercise legal rights they have, they will empower the employee or protect the employee against retaliatory conduct by the employer.

The law provides that an employer may not take punitive oradverse action against an employee in response to the employee engaging in protected activity. This terminology is important and it's been the subject of a great deal of litigation over the years, essentially trying to define what's meant by protected activity and adverse action and how can you tell when the adverse action was in response to the exercise of some protected activity. So I'd like to take a few minutes to focus on each of these concepts so we have a clearer understanding of what we're talking about when we get into a discussion of the cases.

Generally, protected activity by employees arises when employees express concerns about issues in their workplace, they participatein an investigation that might be ongoing concerning alleged wrongdoing, or they have taken some action in their own personal lives that overlaps with the workplace and causes some concern for the employer. So with that kind of context, let's talk for a minute about what protected activity means.

Basically, an employee is engaging in protected activity when he or she opposes an illegal activity or a suspected illegal activity by the employer, or makes a complaint about something in the workplace, participates in an investigation or asserts a protected right.

Now, opposing illegal activity can take a number of different forms. It basically means that the employee has objected to what they believe might be illegal conduct. For example, they complain to their supervisor that they think they are being subjected to unfairdiscrimination on the basis of their gender or race. They think that maybe the payroll department isn't paying them properly underthe wage and hour laws, so they voice an objection to that. They complain that health and safety laws aren't being followed properly or that the company is polluting illegally or those are examples of kinds of opposition to illegal activity or suspected illegal activity that the employee might engage in.

They might also become a whistleblower and report a suspected wrongdoing to a government agency. They might go to the EEOC and file a complaint outside of the company they are complaining to an arbiter or an agency that would investigate.

So anybody who engages in any of the kind of reporting, complaining, agitating, opposition to what they believe in good faith to be illegal or improper conduct by the employer is going to be a protected person.

You're also protected if you participate in any way in an investigation either internally or by an outside authority. That could mean that you are interviewed and give a statement. It could mean that you're just viewed as siding with a complaining employee.You're good friends with somebody who has made a complaint and the employer kind of lumps you together in the employer's mind. If you're in that category, you're protected.

And you're also protected if you're asserting a protected right. That is if you have a right as an employee to have a leave of absence under the Family and Medical Leave Act. The employer can't retaliate against you for having exercised the right to take that leave. You're protected if you require an accommodation in employment due to a disability and you request a reasonable accommodation. The employer may not retaliate against you or take action against you because you've made that request. There are a number of different rights that are protected, both under federal and state law. In California, for example, employees have the right to take off time to vote or to serve as a juror. All employees are entitled to participate in union organizing activity. These are examples of protected rights that fall under protected activity. So we've kind of taken a quick look at who are the employees that might be subject to retaliation or might be in a category where retaliation could come up.

So now let's look for a second at what's meant by adverse action. Adverse action basically means a negative change in employment, for example, you know, the most obvious is somebody gets terminated or fired or having exercised a protected right, but it can mean a range of things. It could be just a negative evaluation following the protected activity. It could be subtle. It could be someone is suddenly not given support as they used to be given for performance of their job duties. In one case it was exclusion from a weekly meeting that was important to everybody in the department understanding their job for that week. This person began to not be invited to the weekly lunch meeting. That was considered to be an adverse action.

And it doesn't have to necessarily be conduct that affects the employee's work life. If in the discrimination context,if you're complaining you've been discriminated against because of an protected classification, the adverse action you suffer as a result of discrimination does have to be a direct effect on a term or condition of your employment. But the courts have interpreted the retaliation prong of this to be broader so that conduct that the employer takes against the employee to punish them or chill them from exercising a protected activity right may be outside the workplace.

For example, in earlier this year, there was a case that was decided where an employee -- there was an employee of the FBI and he complained of racial harassment by his supervisors and the FBI was found to have retaliated against him by refusing, contrary to FBI policy, to investigate death threats that had been made against him and his wife. Well, that wasn't a term or condition of his employment that was being affected, but it was outside of his work life, but it was a consequence or a punishment for him having complained of racial harassment.

Similarly, there was another case where the employer filed false criminal charges against a former employee who had complained about discrimination. So the courts have held that any conduct that would cause a reasonable employee to hesitate or refrain from complaining about illegal activity or exercising a protectedright -- it will be construed to be adverse action. It is theelement that the adverse action must actually cause harm to the complaining person or the protected person.

So in order to make out a cause of action for retaliation,though, an employee has to be able to prove a causal connection.The adverse action by the employer was actually as a result of the employee having engaged in protected activity. They have to proveit wouldn't have happen but for the protected activity. In law, propositions can be proved either directly or indirectly in the context of retaliation, you're very rarely going to have a manager who admits or supervisor who admits that his or her motive was to retaliate against a complaining person. So most often courts and juries will be asked to look at circumstantial evidence of a retaliatory motive and one of the most important pieces of circumstantial evidence is proximity in time. How soon after the exercise of the protected activity was the adverse consequence?

Other things that will be looked at are inconsistencies in the management's explanation for why the adverse action happened, evidence of lying or covering up, no record whatsoever of why the adverse action was taken, it could be other evidence -- indirect evidence of retaliatory motive.

And the motive toward retaliation does not have to be the only motive for why the adverse action was taken. As long as it's a motivating factor in why the employee was punished or suffered adverse consequences, it can be enough to support a cause of actionfor retaliation.

And just to finish the description of the legal standards, the courts employ what's called a burden shifting analysis, and it refers to the burden of proof on the elements that we've just been discussing. If an employee files a lawsuit for retaliation, the first thing they have to prove is that they suffered a material adverse action in response to having exercised protected activity.If they can put in enough evidence that that happened to them, the burden then shifts to the employer, and the employer responds by saying, well, even if all this stuff happened as the plaintiff has said, we had a legitimate, nondiscriminatory business reason for doing what we did, and it wasn't because of retaliation at all, it was because of these other legitimate business reasons that this happens to the employee.

Once the employer does that, then the burden shifts back to the employee who has to put on more evidence to show that what the employer has said is just an excuse. It's just a pretext. It's not the real reason. The real reason was retaliatory.

So these cases always come down to very fact intensive, case by case analysis of what happened and why and what's the persuasive value of the evidence and the testimony that's offered on each of these points.

Now, an employer can defend against a claim of retaliation quite successfully in many cases by showing that the adverse consequence that happened to the employee had nothing to do with the employee having exercised a protected right or having made a complaint of illegal activity. And the most persuasive way for an employer to prove that is to have evidence that shows that the adverse action was going to happen any way against the employee. That is, the negative review had already been written. The decision to terminate the employee had already been made and documented prior to the time that the employee made the complaint or asked for the leave of absence or asked for the accommodation or whatever the protected activity was. If the employer can prove that, then theemployee is going to have a very, very difficult time of proving that there was actual retaliation involved in the incident.

So that's kind of the legal analysis -- legal elements portion of this discussion. I wanted to include a section on kind of the psychology of retaliation as I've observed it over the years andgive you a little bit of discussion about from the employee's perspective and from the employer's perspective, how retaliation claims arise and what gives them legs.

I have found in my practice that employees -- at least in California particularly -- seem to know their rights pretty well and they want to enjoy their rights. They have a right to their rights, and they know it. And they want to be treated fairly and they not only personally want to be treated fairly, but they want all their coworkers to be treated fairly. And that contributes when everybody is being treated according to the law to good morale and they will be bothered or concerned if they observe something in the workplace that they think is not right, if they think something is unfair or illegal or is a safety violation, you know, they're going to bring it up and they may want to take advantage of their own legal rights by having a family medical leave or pregnancy disability leave in California or many of the other rights that we've already discussed.

On the other hand, they might also fear retaliation if they complain. How is it going to affect me if I complain, will my supervisors come down on me? Will it turn up in my next review in they may also have a legitimate fear of retaliation. And if they then experience an adverse action after having suspected or voiced complaints about some conduct in the workplace, the natural human reaction is to feel injured and disappointed and this may lead ultimately to filing a charge or a lawsuit in response to any adverse action that they suffer.

From the employer's perspective, most employers in my experience want to do the right thing. They want to obey the law. They want to treat their employees fairly. They may be totally unaware of the conduct that the employee is complaining about and be happy to hear about it and know about it so they can correct it. Many times, because although retaliation claims have been litigated for several years now, there are still companies and employers who don't realize that retaliation is unlawful. And they don't understand the parameters under which retaliation can be an actual issue.

Also from the employer's point of view, there is some legitimacy I think to the fear of employees of complaining because they fear retaliation because no employer really likes to hear complaints. I mean, who wants to hear complaints? It's an interruption. It's something that slows down production or slows down worklife and once an investigation -- excuse me -- once a complaint of a harassment or discrimination is made, it must be investigated and that's time-consuming and distracting and takes people's attention away from their work and it can also affect the workplace morale quite severely.

Then if it turns out that the complaint was groundless, the employer oftentimes supervisors may feel betrayed by the person who complained, that they didn't give them enough benefit of the doubt or that they were personally being attacked and thus the urge on the part of the supervisor to get even or show the employee what the consequences will be, and this is particularly difficult in workplaces where there have not been education given to the supervisors about what the law is on retaliation.

So how do employers deal with the prospect of having retaliation claims arise in their workplace? The first thing they should do is establish a policy against retaliation and it should be in writing and it should be published to all of their employees. And their managers and supervisors should be educated and given specialtraining as to what can constitute retaliation. There should be an avenue set up for employees to voice complaints, either anonymously or through a suggestion box or encouraged to actually discuss issues with their supervisors before they become problems or big problems.

Pragmatically speaking, an employer should be very careful about imposing any kind of adverse action on an employee close in time after the employee has voiced the complaint or engaged in some other protected activity. Finally, the employer must keep accurate and complaint documentation of the entire incident from the moment of the complaint or request for accommodation or leave or whatever the requested protected activity is through the conclusion of the adverse action. If there is an explanation on the employer's side for why they did what they did,they are infinitely more likely to be able to persuade a jury down the road that the reason they took the adverse action was for legitimate business reasons rather than for retaliatory reasons.

There are a couple of other cases I wanted to touch on briefly. One is the Wright vs. CompUSA out of the First Circuit in 2003. Mr. Wright was a district sales manager for CompUSA. He had workedthere for two years. He was diagnosed with attention deficit disorder and he began taking medication for it and a few months later he told his supervisor that he had that condition. About a year later, he was assigned to a new general manager who was apparently had a different management style and soon there after, Mr. Wright began experiencing severe stress and anxiety on the job. And this made his ADD symptoms flair up. He had a panic attack at work, and then his doctor recommended that he take a leave of absence, which he did.

When he came back from the leave, he asked for a transfer away from the new general manager which was denied. He then asked to be allowed to work from home, and that request was denied. He then went back to work under restrictions that were requested by his doctor, which included allowing him to set for himself how much time it would take to complete given tasks. He was allowed -- or asked to be allowed to avoid early morning meeting times and to have work assignments given to him in writing so that they were clear.

The new general manager ignored the doctor's suggested accommodation measures. Then a few days later, Mr. Wright was supposed to attend a meeting of district sales managers, but the night before that, his son was injured and he had to take him -- had to take the next day off to take his son to the doctor. So he missed the meeting of district sales managers. The new general manager was furious and when he finally arrived to work, he was fired.

So Mr. Wright then sued for disability discrimination and retaliation. And the court held in this case that there was not enough evidence of disability discrimination because under the Americans with Disabilities Act, ADD was not a disability unless Mr. Wright could show that his ADD substantially limited the major life activities of reading, speaking, concentrating, thinking, articulating and the court said he was able to do all those things prior to the arrival of the new general manager. So the ADD condition did not fit in this case under the definition of a disability under the Americans with Disabilities Act.

However, the retaliation claim should have gone to the jury, for the jury to decide, because the underlying claim of discrimination doesn't have to be actionable, which it was not in this case. In this case, though, it was undisputed that Mr. Wright had asked for accommodations. You know, letting him set his own time for completing tasks, having the work assignments in writing and so forth. And he had asked for those accommodations and shortly thereafter he was fired. So the court said it was error for the lower court to dismiss those claims that once Mr. Wright had made that showing, CompUSA should have been required to offer evidence that it had a legitimate, nondiscriminatory business reason for firing him and then Mr. Wright would have had the burden of showing that it was just a pretext or an excuse and in fact they were retaliating all along.

This case is interesting just because it illustrates clearly that proximity in time is really important in the factual analysis of these cases, and also you don't actually have to have had discrimination occur for retaliation to be a viable cause of action.

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Beth: I hope you enjoyed that segment from the webcast "Workplace Retaliation" and if you'd like to hear the rest of it and learn more, you can find the length to the full-length webcast at our website, www.ada-podcast.com. You can also go directly to The Southwest ADA Center website at www.dlrp.org. And there you also find lots and lots of webcasts that have been archived over the years.

So until next time, this is Beth Case with The Southwest ADA Center Podcast.





The Southwest ADA Center is a program of Independent Living Research Utilization at TIRR - Memorial Hermann in Houston, Texas, and is funded by the National Institute on Disability and Rehabilitation Research. If you have questions about disability law or would like to request materials or training, please call 1-800-949-4232. The Southwest ADA Center Podcast is protected by the Creative Commons Attribution Non-Commercial No-Derivative-Works 2.5 License. For more information and transcripts, visit www.ada-podcast.com.