HR managers get blindsided often enough, but that shouldn’t happen with retaliation claims, says attorney Judith A. Moldover, because you can see them coming.
Who feels good about someone complaining about them?
No one, so it’s simply human nature to retaliate, says attorney Judith Muldover of the New York City law firm of Ford and Harrison LLP. That means it has to be second nature for HR to take control, she says. As soon as there is a complaint or lawsuit, HR needs to guide management to prevent that often irresistible urge to strike back.
In fact, retaliation suits are on the increase, Muldover points out, but they are relatively easy to prevent if HR is alert and proactive. Her comments were made at the Legal and Legislative Conference of the New York City chapter of SHRM.
Anatomy of a Retaliation Claim
First, there’s a need to understand retaliation suits. In most cases, Moldover says, there are three things that the plaintiff must show:
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▪ Protected activity. This is the activity that sparked the retaliation.
▪ Materially adverse action. This is the retaliatory act.
▪ Causation. Proof that the adverse action was because of the protected activity.
Muldover calls this, “connecting the dots.”
Let’s look at these three elements in more detail.
Element 1: Protected Activities
Employees can be acting in “opposition” to an unlawful practice or they can “participate” in a protected activity.
Opposition
Say someone complains, “We are not paid well.” That’s probably just run-of-the-mill grousing, not protected opposition. But if an employee says, “I’m not getting paid enough because I am a woman,” that’s starting to sound like a protected activity.
Why? It’s illegal to discriminate in pay due to gender and, therefore, society benefits when someone points it out. The law, therefore, protects the person who did so.
What types of opposition complaints are not protected?
▪ Vague complaints: “They look at me funny.”
▪ Behavior that is disruptive and interferes with getting work done.
▪ Complaining to a customer. (The complaint needs to be made to the employer or the authorities.)
Participation
This refers to employees who take part in filing, threatening to file, or encouraging someone else to file charges or lawsuits; who participate in investigations; or who give testimony at a hearing or lawsuit.
Element 2: Materially Adverse Action
This is generally defined as an employer action that would dissuade a reasonable employee from making or supporting a charge. Adverse actions might include a bad evaluation, transfer to a less desirable position or, of course, termination, demotion, or discipline.
Element 3: Causation
Finally, there needs to be some connection between a protected activity and the retaliatory act. Sometimes this is a “smoking gun” (“Get rid of that complainer!”) but more often it is circumstantial. Here are some signs that make courts think that an adverse employment action was retaliation.
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Timing of act. Although courts are leery about making decisions based only on time proximity, the closer in time the act and the alleged retaliation, the more likely time proximity will be accepted as evidence. How close is close? When actions are days apart, that’s going to be taken as a strong indicator. If separated by months, timing is less persuasive.
Failure to follow policy. The question is always going to be: Why did you take this action against this complainer and not against others who did the same thing?
Inconsistent explanations. Inconsistency comes either from a story that changes over time or when it’s told by different levels of the organization (the boss says “poor performance” but upper management says “layoff”). Once there’s more than one story, there’s trouble.
In the next Advisor, Moldover’s recommendations for controlling retaliation liability and an introduction to a unique training system that helps managers and supervisors limit liability in hiring, discipline, and firing.