Thursday, May 29, 2008

The Cost of Retailiation

As of May 2008, the legal standard in any discrimination claim has changed as the result of decisions issued by the U.S. Supreme Court, the highest court in our country. Both cases started as standard discrimination claims, where an employee was fired or denied a transfer because of “alleged” discrimination. In one case, race discrimination was claimed and in the other, age discrimination was the issue. One case involved a private employer and the other involved a government employee.

In the end, neither case was decided on the basis of the original discrimination claim. Instead, both matters were decided on the ground that the employer had retaliated against the employee as the result of the employee filing a discrimination claim. What is unusual in these decisions is that our anti-discrimination laws do not always provide protection from retaliation, or so we thought. In both cases, the complaints were first filed under laws that did not provide protection from employer retaliation. However, to the surprise of most of the legal world, the Supreme Court applied anti-retaliation provisions from the Civil Rights Act of 1964 and the Age Discrimination in Employment Act, which applies only to the private sector.

As the result of these two decisions, employers need to exercise greater caution when firing, disciplining, or considering any other employment related action such as the transfer request which was denied in one of the cases. Because the Court allowed the employees to link the retaliation claim to a prior discrimination complaint, the employee did not need to carry the heavy burden of proving illegal discrimination, which has defeated many claims in recent years. The burden of proving employer retaliation is easier to achieve than a discrimination claim and the Supreme Court has now extended the ability to assert retaliation claims to many more cases.

Employers need to take a global view of an employee’s history and records before making any decision involving any employee who is a member of a protected group, whether by reason of race, sex, age, or in some cases national origin. If an employee has filed a discrimination complaint with an employer, any employment related action or decision needs to be carefully scrutinized by the employer to determine if it can be connected to the job decision. Employees who want to assert a discrimination claim against their employer need to provide a complete history to their attorneys, in order to evaluate whether the claim should include retaliation in addition to discrimination. The failure to include the retaliation claim at the start may mean that the employee is forever barred from asserting that claim.

Employers and employees both need to seek counsel and to provide all relevant information, for their own benefit.

1 comment:

Michael L. Gooch said...

Yes. Age discrimination happens and rather frequently. However, the offenders often do not know that they are engaged in this activity. Inappropriate behavior and off-hand remarks will sneak up to bite you. As a corporate director for a fortune 500 company, I have been blindsided many times by disparaging remarks made by your management team? The managers don’t realize at the time that they are in a discrimination mode. I detail these likely events in my management book, Wingtips with Spurs. Usually they will ‘get it’ when their depositions start. When you hear the following phrases, stop the offender, offer some education, and hope to goodness no one else heard them. If it happens again with the same person, it may be time to sell the cow. The courts and juries will decide if the remarks are ‘stray comments’ or direct evidence of a discrimination mindset.
• “We need sharp, young people.”
• “We need people who can come in early and stay late.”
• “They’re dinosaurs.”
• “They’re too old to learn something new”
• “We want employees who are young, lean, and mean.”
• “They wouldn’t be able to keep up with the fast company
• “We’re looking for longevity.”
• “We need some young blood in this department.”
If a manager allows a culture that tolerates remarks such as the ones above, then the manager will probably get what he or she is asking for. The great leader will remind management on a frequent basis that they should never forget silence is often the best answer. Michael L. Gooch, SPHR