Retaliation cases are an “incredible pain,” says Michael Faillace. “They are the 21st century weapon for plaintiffs’ lawyers who have no case.”
Retaliation claims are growing, notes Faillace, and it is no wonder—employees with baseless claims can make their retaliation claims stick. “You just don’t want to be in front of a jury on one of these cases,” says Faillace. Jurors distrust employers to start with. And they easily identify with retaliation claims as part of human nature.
Faillace, managing partner of Michael Faillace & Associates in New York City, offered specific steps HR managers can take to prevent retaliation at a Society for Human Resource Management (SHRM) conference.
The Story of Uncle Milty
Uncle Milty was a 62-year-old executive whom colleagues called “Uncle” and “Grumpy.” Uncle Milty lost out on a promotion which was given instead to a 35-year-old, says Faillace. Uncle Milty’s lawyer fired off a letter accusing his employer of age discrimination, and days later, Uncle Milty was fired. His employer said he was fired because he was not a “team player.” He always thought he knew better they said, and he made faces during meetings.
Jury Agrees: No Discrimination
A jury agreed with the employer that there was no evidence of discrimination; however, they did award Uncle Milty $5 million plus attorney’s fees for retaliation.
This employer, Faillace says, could have avoided all liability if it had done its homework when the attorney’s letter arrived. “No matter how much of a pain it is," says Faillace, "in this situation you buy the executive out and get a release."
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Components of a Retaliation Claim
Faillace notes that there are three primary elements of retaliation:
- Protected activity
- Adverse employment action
- Causal connection
Protected Activity
Protected activity, is of two main types: opposition and participation. Faillace offered examples of opposition activity:
- Threatening to file a charge or other formal complaint alleging discrimination
- Complaining to anyone about alleged discrimination against oneself or others
- Refusing to obey an order because of a reasonable belief that it is discriminatory
- Requesting a reasonable accommodation or a religious accommodation
Remember, says Faillace, that an articulated expression of opposition is not required. Conduct itself may be enough, for example:
- Rejecting a supervisor’s sexual advances
- Asking an employer whether race factored into an employment decision
- Peaceful picketing.
However, the employee’s opposition must be reasonable. Some examples of acts that were not protected:
- Disruptive and violent picketing
- Violations of legitimate company rules
- Knowingly disobeying company orders that are not discriminatory
- Conscious efforts to hamper the company’s business pursuits.
Participation
Generally, employees are also protected when they make a charge, testify, assist, or participate in any manner in an investigation, proceeding, or hearing.
Participation is broadly construed. For example, says Faillace, covered participation has included:
- Making a preliminary visit to an EEO counselor
- Expressing an intent to file a charge
- Being a probable witness
- Assisting fellow workers in their discrimination claims.
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Faillace points out an important distinction between “opposers” and “participants.” Opposers must have a good faith belief that the employer is violating the law; however, participants generally do not have to have such a belief. For example, a person testifying is protected even though he or she doesn’t believe a law was broken.
Managers and supervisors tend toward retaliatory behavior against participants, notes Faillace. They will ask the participant. “Whose side are you on anyway?” You must train your managers that participation is protected.
In tomorrow’s Advisor, more of Faillace’s suggestions for avoiding retaliation lawsuits, and an introduction to a unique 10-minute-at-a-time training system.