More on Retaliation Claims

Not only the victims of alleged harassment or discrimination are protected for exercising their right to complain and be protected.  Employees who oppose such practices or participate in an investigation of a harassment or discrimination claim also are protected from retaliation for those activities.    The Equal Employment Opportunity Commission ("EEOC") recently filed suit against Sara Lee Corp. for firing an African American employee employed at its Houston facility who complained about allegedly discriminatory practices directed at her and other employees.  The director of the EEOC's Houston office commented, "Even if an alleged discriminatory action is found to lack merit, the EEOC will still hold employers accountable for any retaliation related to it."

An employee's stated dissatisfaction regarding diversity efforts alone, however, may not be protected activity.  For example, in Hood v. Pfizer, the Third Circuit held that an employee who asked at a meeting "why more wasn't being done to promote diversity within [his department]" did not complain about discrimination but rather expressed a generalized concern about the extent of his employer's affirmative diversity efforts.

As part of any investigation of a harassment or retaliation complaint, employers must ensure that the complainant and any employee participating in the investigation are protected from retaliation.  The best way to prevent retaliation is to keep complaints as confidential as possible - if managers and employees don't know about a claim, then they can't take an adverse action related to it.  While absolute confidentiality cannot be promised, only those with a need to know should be privy to a complaint.  In addition, once the complaint is resolved, even if it is determined to be without merit, as I stated in my last post - it ain't over.

It Ain't Over When It's Over



Employers who take an adverse action against a current employee who brought a complaint or participated in an investigation of a complaint by another employee may face a claim that such action was in retaliation for protected activity. Federal and state anti-discrimination laws prohibit retaliation against an employee for protected activity to the same extent as the harassment or discrimination itself.  An employee may even have a claim for retaliation where the underlying claim is resolved or unfounded.

In Burlington Northern v. White, the United States Supreme Court expanded the meaning of retaliation under Title VII in determining that the anti-retaliation provisions were not limited to those actions that affect the terms and conditions of employment. Rather, retaliation can include acts that go beyond those that are employment related, such as conduct by co-workers.

In a recent New Jersey state court decision, Fernando Roa et al v. LaFe and Marino Roa, the Appellate Division, consistent with Burlington Northern, held that the plaintiff could pursue his claims for actions that occurred after his termination ended. Specifically, plaintiffs alleged that their former employer unfairly claimed that the plaintiffs were dismissed for misconduct when they applied for unemployment benefits. In addition, Mr. Roa claimed that the company improperly cut off his health benefits, which he did not discover until after he left employment.

In addition to the conduct alleged in the Roa case, employers need to be careful of other post-employment conduct, such as negative references.

In light of the judicial expansion of the type of conduct that can constitute retaliation under anti-discrimination laws, employers who take adverse action against an employee who has complained about harassment or discrimination, participated in an investigation or engaged in other protected activity need to make sure there is no causal link. If an employee presents a performance, attendance or other issue, then managers should promptly and progressively discipline the employee and not expect to initiate such action about a prior problem following a protected complaint by the employee. Employers also should be aware of whether any employees slated for a lay-off have engaged in protected activity that could be the basis for a retaliation complaint. Such steps protect employee rights and protect employers from retaliation claims that ultimately may be more challenging to defend than the underlying harassment or discrimination allegations.