Retaliation Claim: Double Jeopardy

Friday, March 09, 2012

Virtually all Federal and state whistleblower and employment related laws have an anti-retaliation clause which prohibits taking adverse action against an employee who is otherwise engaged in some protected activity. The scenario works like this; the employee files a claim of discrimination or reports some illegal action of their employer. Within days of filing the claim or reporting the incident, the employer demotes, transfers, re-schedules, changes job duties, hours of work or terminates the employee for “cause”. The aggrieved employee now adds a claim of retaliation to their original charge. Even if the original charge against the employer is dismissed, the claim of retaliation may have merit and result in significant financial loss to the employer.

Consider Kevin Kasten who filed a retaliation claim against his former employer claiming that he had been fired for “oral complaints” about the inappropriate location of time clocks under FLSA. The Supreme Court concluded that a "complaint is 'filed' when 'a reasonable, objective person would have understood the employee' to have 'put the employer on notice”. The case was sent back to the lower courts for further processing consistent with Supreme Court’s definition of when a ‘complaint is filed’. Even if Kasten’s firing was for a valid reason, the employer’s actions may still constitute retaliation, which is going to be expensive to settle.

A claim of retaliation may even be filed by a third party. The Supreme Court revised a lower court’s ruling that the terminated fiancée of an employee could not file a claim of retaliation. The Court concluded that retaliation is not restricted to “conditions of employment”, noticeably; retaliation may include action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination”. Thus retaliation may occur even when the injured person is a third party such as a relative, fiancée or a co-worker.

If found in such a situation, an organization should consider long and hard before taking any action that might be remotely perceived as retaliation. Something as seemingly harmless as changing an employee’s work hours could impact regular or overtime earnings. Retaliation may be, maybe not. Nevertheless, the perception of retaliation could persist and it could provide the employee with the grounds to file an additional charge of retaliation. Now the employer has two charges to contend with, not just one.

And while the employer and others are engaged in defending their action(s), who is running the organization? Even if the employer prevails, other workers are watching and may be embolden to take action at some time in the future. Even if the employer prevails in court on the original claim, they may still face significant damages on the charge of retaliation. The EEOC’s own manual states that,”Compensatory and punitive damages for retaliation claims … are not subject to statutory caps. Punitive damages often are appropriate in retaliation claims under any of the statutes enforced by the EEOC.”

In a May 2011 case involving “sexual harassment by a supervisor”, a jury awarded $350,000 in damages, $242,000 in back pay, and $10 million in punitive damages. A heavy price to pay for an organization that fails to manage to its own policies of “prohibit[ing] any kind of sexual harassment or retaliation against an employee who files a complaint.”