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.

Why me?

"Why me?"  It's the most basic question in challenging a RIF, but it may be harder to answer than employers think.  Poor scores or evaluations alone will not be enough.

The importance of well-reasoned RIFs is clearly demonstrated in EEOC v. Boeing Co., decided April 8, 2009.  Boeing selected two female employees, Antonia Castron and Renee Wrede,  for lay-off based on their low scores on reduction in force assessments.  The two employees then filed charges of gender discrimination with the Equal Employment Opportunity Commission (the "EEOC"), which filed suit against Boeing.   The court found that the EEOC had presented sufficient evidence to proceed with its claims based on the following:

Antonia Castron:

- Derogatory and demeaning remarks made by one supervisor, although not directed at Castron, were possible evidence of discrimination.

- Castron's former supervisor had possibly induced Castron to accept a transfer by promising that she would not be laid off during training.  However, once training was completed, her employment was terminated based on an evaluation by her new supervisor.

- The new supervisor's evaluation of Castron was suspect because he did not solicit Castron trainer's input or take into consideration her past performance.  Notably, the court considered co-worker testimony that the supervisor treated Castron unfairly.

Renee Wrede:

- One year after filing a sexual harassment claim, which Boeing substantiated, Wrede received lower scores in her RIF evaluation and was eventually terminated.

- Male employees who received lower RIF scores were not terminated, but instead found other positions in Boeing, partly due to supervisor assistance that was not extended to Wrede.

- The court noted that the fact that the same actors who ultimately downgraded Wrede's review previously gave her scores high enough to avoid a RIF could create an inference that no discrimination took place.  However, the inference in this case was weaker as applied to less overtly positive employment decisions, such as refraining from firing an employee or giving a "lukewarm" review, as compared to positive decisions such as promotion.  The court explained "[e]ven an extremely biased supervisor who would never hire or promote members of a particular protected class might still act cautiously by lowering an existing employee's scores over time."

- In some instances, the evaluators could not explain or support the downgraded scores, which were refuted by co-workers.

Employers implementing a reduction in force can learn some important lessons from this decision.  An inference of discrimination can be created  by:  a discriminatory environment based on even non-specific comments about a protected class;  assurances, such as of job security, that are later broken;  unsubstantiated negative evaluations; a disregard of co-worker assessments; and, favoritism. 

Front line supervisors must be able to substantiate their decisions objectively.  Management cannot rely on poor evaluations or RIF assessments only without testing the supervisor's decision.  Courts and juries will not accept explanations of adverse employment decisions on their face, and in the absence of credible substantiation, will attribute suspect and even discriminatory motives to employers.

Bias Claims on the Rise

As employee rights expand and the economy contracts, it is not surprising that employment claims are on the rise.  With respect to discrimination claims, the Equal Employment Opportunity Commission had an unprecedented surge in discrimination claims in 2008, with a 15% increase since 2007.  The greatest increases were in retaliation and age charges.

The combination of more terminations and less jobs can be expected to lead to an increase in discrimination and other employment-related claims.  In the context of a group termination, it is more likely someone in the group may pursue a complaint.  Moreover, if a termination is for economic, rather than performance, reasons, an employee may feel s/he was chosen or treated unfairly.  Employees who may not have sued if they were able to move on and find other employment now may be more likely to do so if they cannot find another job.

Former EEOC General Counsel Ronald Cooper commented on the uptick in claims at an employment conference sponsored by the American Law Institute - American Bar Association in Washington, DC in December, 2008.  Mr. Cooper noted that the recent amendments to the Americans with Disabilities Act will make it easier for employees to prove that they are disabled because individuals who use "mitigating measures" or have episodic conditions will not be excluded.  In addition, more employees will be entitled to reasonable accommodations, so claims for failure to accommodate may increase as well. 

However, "undue hardship" on the employer may be easier to prove in this economic climate. Undue hardship may relieve an employer from the obligation to accommodate and takes into consideration the size and financial condition of the business and expense of the accommodation.

Mr. Cooper also described current conditions as a "perfect storm" for age claims.   The workforce is older, and reductions in force may have a more severe impact on older employees who are more expensive.  In addition, age claims are easier to pursue than other types of discrimination complaints.  For most claims, an employee has to exhaust his or her administrative remedies by filing a charge with the EEOC first and then waiting for a right to sue letter.  Employees bringing a charge of age discrimination with the EEOC may file suit after 60 days without waiting for a right to sue letter.  In addition, the recent United States Supreme Court decision in Meacham v. Knolls Atomic Power Lab. puts the burden on an employer to show that a challenged employment decision that allegedly has a disparate impact on older workers was based on a reasonable factor other than age, essentially requiring employers to disprove age discrimination.

As workforces become more diverse, religious discrimination claims are increasing as well.  As with disabilities, employers have an obligation to reasonably accommodate bona fide religious beliefs, although the burden is not as high.  This obligation can include relaxing dress codes, changing schedules, and allowing prayer breaks.

What can employers do to protect themselves from discrimination claims?

1.  Take proactive steps:

       -    Implement equal employment opportunity policies that include a procedure for employees to request reasonable accommodations where required.

      -  Implement a harassment avoidance policy that includes a complaint procedure and prohibition on retaliation.

       -    Conduct harassment avoidance and diversity training for all managers and employees so that employees understand their right to be free from harassment and discrimination and their responsibility to refrain from prohibited conduct and to report claims internally. Properly conducted, training can significantly decrease the risk of agency claims and lawsuits by teaching employees to correct behavior and to report to the company first.   In fact, employers who have a harassment avoidance policy, which includes internal complaint procedures, and conduct training may have an affirmative defense to hostile work environment harassment claims if an employee fails to take advantage of the employer's safeguards.  For more information on employment training, click here:

     -  Make sure you post all postings required by federal and applicable state law.

2.  Make sure each adverse employment decision, including terminations and reductions in force, is supported by objective, non-discriminatory business reasons and documented.  For more information on RIF considerations, see my January 27th post on RIF plans.

3.   While a fence at the top of the hill is better than an ambulance at the bottom, obtaining a release of all claims from a departing employee can protect an employer from liability.  When offering severance, make sure it is conditioned on an effective release.  For more information on release of age claims, see my January 27 post on the Older Workers Benefit Protection Act.