Legal Brief                                                         Page 10


The Riskiness of Retaliation

by Employers  



Wayne Young

During an internal investigation of a sexual harassment complaint in a metropolitan school district in the Southeast, a school employee gives a statement supporting her co-worker’s claim of inappropriate behavior by a superior. Soon after providing the statement, she is fired amid allegations of embezzlement. She files a federal lawsuit contending retaliation by the employer in violation of the Civil Rights Act of 1964.

Her claim is dismissed by the trial court, and the dismissal is upheld on appeal. But the U.S. Supreme Court reverses the lower courts, ruling that the employee, in giving a corroborating statement, had “opposed a practice” that was unlawful under the Civil Rights Act and that she was thus protected from retaliation.

She ultimately obtains a $1.5 million judgment against the school district.

Worker Protection
All federal civil rights laws contain provisions that prohibit employers from retaliating against any employee for filing a claim under the act or for taking other actions to oppose unlawful discrimination by the employer.

These same anti-retaliation protections apply to claims brought by employees who allege an employer’s violation of their free speech or other constitutional rights. Even laws not dealing with discrimination, such as the Family and Medical Leave Act, prohibit employers from punishing employees for asserting their rights under the law.

Many states have legislation similar to these federal acts that protects employees who assert their workplace rights. So-called “whistle-blower” laws are common, and they protect employees who identify and report workplace wrongdoing.

In school districts, policy and contract language may provide additional protections and may contain anti-retaliation provisions.

Retaliation Signs
To prove retaliation, the employee must establish a connection between the employee’s assertion of workplace rights and acts of the employer that are claimed to be retaliatory. The actions of the employer also must be of a nature that would “dissuade a reasonable worker” from pursuing enforcement of his or her civil rights. For example, termination or reassignment to an “objectively” less desirable job could be evidence of retaliation.

Recent federal court decisions also have expanded the application of retaliation protection beyond direct action against a complaining employee. The case described earlier extended the definition of “opposition” to an employer’s practice to include routine participation in an investigative process.

Another recent Supreme Court case held that retaliation protections can apply even to persons who have had no role in a claim against the employer, if facts show that the timing and purpose of the employer’s action appear to be retaliatory. (In this case, the employer had fired the fiancé of an employee who had filed a sexual discrimination claim; the fiancé successfully claimed retaliation.)

But even as they have expanded employee protections against employer retaliation, the federal courts have provided some guidance to employers in defining those actions that constitute retaliation and those that do not. The Supreme Court stated that “petty slights or minor annoyances that often take place at work ... [or] snubbing by supervisors and co-workers are not examples of behavior that would support a claim of retaliation.”

Caution for Employers
School administrators can be pro-active in protecting themselves from retaliation claims. Having sound employee discipline procedures, consistently applied and supported by sufficient documentation, is a good place to start. By ignoring the substandard performance of an employee over time and then responding rashly (“That’s the last straw! Fire him!”) when that employee files a workplace claim, employers essentially invite a retaliation claim.

Training frontline supervisors to avoid retaliatory behavior also is advisable. Immediate supervisors should be able to show their actions toward employees pursuing a workplace claim are no different than their actions toward other employees.

The age-old axiom “Don’t get mad, get even” might make for an interesting story line in an action movie, but it is an ill-advised practice for employers who are dealing with claims of workplace discrimination by employees.

Wayne Young is executive director and general counsel for the Kentucky Association of School Administrators in Frankfort, Ky. E-mail: wayne@kasa.org


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