The thirst for revenge is among the strongest of human emotions. In fact, the innate desire to “get even” has driven much of history. But acting on vindictive feelings can have dire consequences — particularly in the world of employment law.
Mastering HR Report: Discrimination
Courts receptive to retaliation
Most employment protection laws contain antiretaliation provisions, which courts often interpret and apply broadly. Over the past several years, the U.S. Supreme Court has recognized and expanded the right to file retaliation claims. In January, the Court ruled that the antiretaliation provision of Title VII of the Civil Rights Act of 1964 covers an employee who was fired shortly after his fiancée, who worked for the same company, filed a sex discrimination claim. In March, the Court held that the Fair Labor Standards Act’s (FLSA) antiretaliation provision, which uses the phrase “filed any complaint,” applies to an employee’s oral complaints. In the last five years, the Court has made the following rulings:
- Title VII’s antiretaliation clause, which refers to “opposition,” does not require active opposition but encompasses involuntary participation such as making statements during an investigation.
- Employees can file retaliation claims under the Age Discrimination in Employment Act (ADEA).
- Employees can file retaliation claims under Section 1981 of Chapter 42 of the U.S. Code (which prohibits race discrimination), even though the statute doesn’t refer to retaliation.
- Title VII’s antiretaliation provision isn’t limited to adverse actions that affect the terms or conditions of employment. It covers actions that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
In May, the Kansas Supreme Court ruled that a retaliation claim exists when an employee is fired for filing a wage claim under the Kansas Wage Payment Act, which doesn’t provide for such a claim. The court reasoned that if employees aren’t protected from retaliation for exercising their statutory rights, the law’s protections would be illusory.
State-by-state comparison of 50 Employment Laws in 50 States
Juries embrace retaliation
Juries also are more open to retaliation claims. Statistics show that an employee who files a retaliation lawsuit is more likely to prevail at trial and recover significant damages than an employee filing a typical discrimination claim.
Why are retaliation claims different? One theory is that jurors, as a general rule, don’t want to believe that managers are racist or sexist, but they understand it is human nature to want to strike back at someone who attacks the company. In fact, there are a growing number of cases in which the employee fails to establish an underlying discrimination claim but succeeds on the accompanying retaliation claim.
The number of lawsuits asserting retaliation is soaring. Over the past 10 years, retaliation claims filed with the Equal Employment Opportunity Commission (EEOC) have increased by 67 percent, now accounting for more than 36 percent of all charges filed with the EEOC. That’s up from 27 percent 10 years ago.
Given the dangers posed by retaliation claims, it is essential that the training you provide each year to your managers includes specific training on retaliation. Make sure they know what to do — and what not to do — when an employee makes a complaint or accuses them of wrongdoing. Give managers some role-playing scenarios to teach them how to respond under fire, and use case studies to drive the point home. Remind them that engaging in a retaliatory act, even if they believe the underlying accusation is bogus, is a violation of company policy (you do have an antiretaliation policy, right?) and subject to discipline, up to and including termination.
Confucius said it
The great Chinese philosopher Confucius said, “Before you embark on a journey of revenge, dig two graves.” Relay that message to your company’s managers. Make sure they understand that if they take an adverse action against an employee for reporting an on-the-job injury, filing a workers’ compensation claim, making a complaint about discrimination, harassment, or failure to pay overtime or promised wages, or otherwise exercising protected workplace rights, they may be digging their own graves.