SOUTHPORT, CT, Nov. 5, 2012 – In today’s environment troubling employees can become even more troubling. With the disturbing rise in the number of retaliation claims, even a justified firing can result in hours in a courtroom and legal fees in defense of the action. “Retaliation claims are filed with greater frequency than any kind of workplace discrimination claim,” says employment attorney, Daniel Green.
He offers this fictional scenario to illustrate how a simple firing can escalate into a retaliation claim with alarming speed: Tommy Trouble has worked for Vulnerability, Inc. (“Vulnerable”) for many years. Tommy has come to feel much too “at home” with his job. He is frequently late for work. He mouths off to his supervisor, and his productivity has steadily declined. Vulnerable has had it with Tommy and has decided to fire him. But, unbeknownst to the company, before Tommy gets his termination notice, he files a discrimination claim with the Connecticut Commission on Human Rights and Opportunities (“CHRO”). Now Vulnerable has double trouble– it’s faced with defending both Tommy’s discrimination claim and his potentially more difficult retaliation claim.
Tommy has a retaliation claim against Vulnerable if he engages in what the law calls a protected activity and if Vulnerable repays him by firing him or taking other adverse employment action against him. The broad definitions of the key terms explains the large number of retaliation claims,” he says. Tommy’s actions could be defined as a protected activity if he complained about discrimination to Vulnerable’s Human Resources department. His activity would also be called “protected” if he did any of the following: filed a CHRO claim; requested an accommodation under the Americans with Disabilities Act; reported an OSHA violation at Vulnerable’ s plant or engaged in many other activities for which employment law provides policy protection.
If Vulnerable did anything that logically would deter Tommy from engaging in or following up on protected activity, the company could be charged with taking adverse employment action against Tommy. This could include firing or suspending Tommy, disciplining or demoting him, or significantly changing his hours, duties or responsibilities. He might still have a claim even if the company’s action didn’t materially adversely affect his employment.
If Tommy’s claim goes to trial, a jury or a judge might very well conclude that Vulnerable retaliated against him in reaction to his filing a discrimination claim or a safety complaint against the company. “It’s human nature to strike back against those who threaten you, so the court might easily conclude that’s what happened,” points out Green. “There is no equally obvious basic human instinct that would explain an employer’s discrimination or harassment against an employee. Maybe this is why employees often lose their discrimination claims but get a verdict on their simultaneous retaliation claims. I’ve found that juries often feel the retaliation claim is easier to believe.”
It doesn’t matter that Tommy can’t prove discrimination. “Tommy might very well get an award for retaliation even if he can’t prove discrimination,” says Green. “All he has to prove is that he filed the discrimination claim in good faith and then Vulnerable fired him because he filed it. Once Tommy files that claim, he has engaged in what is considered protected activity. That means Vulnerable has to deal with a built–in tension underlying this legal landscape.” Must Vulnerable live with troubling Tommy to avoid potential retaliation liability? Should they fire him anyway, knowing they could run the risk of retaliation liability?
Green offers these suggestions to employers navigating this tricky area:
- Look before you fire – Before firing or taking other adverse employment action against Tommy, Vulnerable must check whether he has recently engaged in protected activity. In this case, Tommy’s CHRO filing was a red flag. Vulnerable should have utilized a chain of review before firing Tommy, since two (or more) heads are better than one.
- Maintain and enforce policies – Vulnerable should maintain and uniformly enforce appropriate policies for disciplining, terminating or taking other adverse action against employees. They should also have explicit policies against retaliation. Employers should train all those involved in employee discipline on how the policies should be implemented and enforced. If Vulnerable’s executives take adverse employment action, it needs to be consistent with action taken against other Vulnerable employees in similar circumstances.
- Take it seriously and keep it confidential – Tommy’s employer must address his complaint in a serious way and keep it as confidential as possible. “The fewer people who know about Tommy’s charge of discrimination, the fewer who could potentially retaliate against him for filing it,” says Green. “In addition, employees involved in the investigation should explicitly be warned that their employer will not tolerate retaliation.”
- Document before you fire – Carefully document all incidents that provide the basis for terminating, demoting or disciplining Tommy. “Vulnerable is in a much better position if it can show that they made a justifiable decision to fire Tommy before he filed his discrimination claim,” says Green.
- Give concerned employees an ear – Provide a point person for unhappy employees to talk to. “Tommy will be less likely to feel it’s him against the world if Vulnerable provides him with a listening ear for his concerns,” suggests Green.
- Avoid giving the impression that the complaint and the firing are related – If an employee engages in protected activity wait on any adverse employment action. “You don’t want to give a jury the opportunity to conclude that Tommy filed his claim and the knee jerk reaction by the company was to fire him,” cautions Green. “Once Tommy files his claim, Vulnerable should let some time pass to conduct an investigation. While the investigation is taking place, Vulnerable should consider letting Tommy work on a different shift or with a different supervisor. This will allow for the possibility that Tommy’s poor performance will improve, or his concern about discrimination might fade. It also gets in the way of a charge that the firing was a result of his filing the claim.”
Retaliation liability can rear its ugly head even when an employee has a longstanding history of poor performance. “While every employer has the right to terminate a poor performer, the decision to fire the employee can create serious, unanticipated problems if it is made in the wrong circumstances,” concludes Green. “That means that every employer should be well–versed in these kinds of issues and take them into consideration before they fire an employee. Discharging an underperforming employee can be like taking a stroll through a minefield. Do not go into the retaliation minefield without the proper protection.”