Retaliation Claims Increase
Recent trends reveal that employment retaliation claims are on the rise. Further, courts are taking a hard line on offending employers accused of retaliation in employment. A review of United States Supreme Court decisions in retaliation cases reveals a remarkable degree of agreement among the Justices. Even conservative Justices who are considered supportive of business as a matter of judicial philosophy do not take kindly to retaliation against employees who have asserted workplace legal claims.
Over the last decade, a number of employment cases have reached the United States Supreme Court claiming retaliation against employees. These plaintiffs had previously claimed violations of wage and hour, Title VII, age discrimination and various civil rights laws which apply to the workplace. The same Court that has made it more difficult for employment plaintiffs to maintain claims of workplace discrimination has been very expansive of the rights of employees who complain of retaliation.
The most recent case decided by the Court earlier this year resulted in a unanimous decision with an opinion written by one of the most conservative Justices (Scalia). In Johnson v. North American Stainless, the plaintiff had not complained of workplace illegality in any form. His fiancé had done so. However, three weeks after a sex discrimination claim was filed by his fiancé, Johnson was fired. Lower courts held that Title VII did not cover alleged retaliation against someone who was merely associated with an employee who complained. Unexpectedly, the United States Supreme Court found that Title VII protects employees if retaliation is based on their association with someone who complains of illegal discrimination.
In fact, employees are making significantly more claims under the retaliation theory. A record number of retaliation claims were filed with the EEOC in 2010, roughly 50% more than in 2000.
Employers must be vigilant to assure that adverse employment actions are completely unrelated to the claims employees might have made for wage and hour, discrimination or any other allegation of legal impropriety in the workplace. Due diligence requires an employer to routinely inquire about the employee’s possible participation in any form of whistleblowing before a negative employment decision is made or communicated.
Whistleblowers are not immunized from termination decisions. However, the scrutiny placed on employer actions taken against employees who have complained previously about legal concerns is significantly greater than other employment claims.
Be certain the evidence justifying termination is totally independent of any legal claim previously made before taking adverse action against employees who complain, participate in or are associated with employees who raise legal complaints in the workplace. Be careful to avoid taking action against employees only after they have complained. Defensible terminations are supported by well-developed documentation which follows the employer’s procedures, precedents and practices leaving no question about the employer’s legal business related motivations.