Can someone anticipating or expecting disciplinary action
protect his job by engaging in protected activity before the ax
falls? In other words, will making a complaint or requesting leave
act as a "get out jail free card" for an employee facing
an adverse action?
The short answer is that employers have the right to take
legitimate, nondiscriminatory actions against employees, even those
who have engaged in protected activity. The longer answer is that
employers should be aware of possible retaliation claims if they do
and make sure they have taken steps to minimize those risks before
taking the action.
Most labor and employment laws have "antiretaliation"
provisions that protect employees' rights to voice concerns or
make good faith complaints about conduct or actions they believe to
be inconsistent with legal standards and requirements. For example,
the antidiscrimination laws protect employees' rights to
complain about harassment and discrimination, to participate in an
investigation of a complaint, to oppose harassment and
discrimination, and to file a charge or a lawsuit without fear of
reprisal.
Likewise, OSHA and similar state safety laws protect
employees'; rights to raise concerns about safety issues.
Federal and state wage-and-hour laws protect employees' rights
to complain about pay practices. Leave laws protect employees from
retaliation for exercising their rights to request or take leave.
Even the bankruptcy code includes an antiretaliation provision
that, in some circumstances, protects employees who file for
bankruptcy protection. Whistleblower protection provisions related
to fraud and financial dealings are becoming more prevalent.
The "adverse employment action" that gives rise to the
retaliation claim may take the form of discipline, discharge, pay
cuts, denial of a promotion, transfer, raise, or other benefit, as
well as other employer actions that may have an adverse effect on
the employee.
Many times, timing and inconsistency are the employee's best
evidence of retaliation. Consider "Jane." who worked for
"ABC Company." Jane was a productive employee with a
long-standing attendance problem for which she was never
disciplined— until her termination.
In July, Jane complained that her manager made sexual comments and
sent inappropriate text messages to her (which she kept). In
August, ABC Company terminated Jane for excessive absenteeism. Jane
files a retaliation claim, even though her poor attendance record
is irrefutable. Jane's retaliation theory is that her
attendance became a problem only after she complained. Her claim is
bolstered if she has evidence that other,"noncomplaining"
employees with comparable bad attendance records were not
terminated.
Retaliation claims are on the rise. In each of the last 3 years,
more retaliation charges were filed with the EEOC than any other
type of charge. In most cases, the retaliation charge or lawsuit
includes a claim or claims of discrimination or harassment. In
Jane's complaint she may say that she was subject to harassment
and was retaliated against for complaining about it. ABC Company
may prevail on the harassment claim but lose the retaliation claim
if the facts show that her termination was retaliatory.
To lower the risk of a retaliation claim, many employers treat
employees who have engaged in protected activity as somewhat
"bulletproof" for purposes of disciplinary action. Before
taking action, prudent employers recognize the risk of a
retaliation claim and then carefully evaluate whether they can
convince the EEOC, a jury, or an arbitrator that the disciplinary
action was unrelated to the protected activity.
This evaluation includes reviewing their previous actions under
similar circumstances, how they treated other employees with
similar performance or conduct issues, and whether they can show
that this employee violated an established policy and practice.
They will confirm the existence of proper documentation and ask
themselves if the planned disciplinary action would seem to an
outsider to be the next logical step considering everything.
If the results of this informal review are "positive"
for going forward, the employer may take the action with the
understanding that the risk of a retaliation claim is lessened, but
not eliminated. In close calls, smart employers pull back and wait
until next time.
Employers also must consider whether they can prove they made the
adverse action decision before the employee engaged in protected
activity. One preventative measure that employers can take is to
"document" the intent to take the action before doing so.
To do so, the employee's manager need only send a simple email
to the Human Resources Department or vice versa explaining the
planned disciplinary action and the expected timing before the
manager meets with the employee. This simple step can go a long way
to proving that the adverse decision was made before the
employee's complaint or other protected activity.
By taking these steps and proceeding with caution, which sometimes
means having to wait, employers can trump the employee's
"get out jail free" card. Remember, in most cases, it is
not your true intent that matters, but what you can prove that
wins. Consistency, documentation and patience will provide that
proof.
The article first appeared on HR.BLR.com.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
