You finally decided to take the long overdue disciplinary
action. Jack has got to be disciplined. But just before you do,
Jack, possibly sensing what's about to happen, makes a
complaint of harassment. This is the first you've heard of this
problem. Is the complaint legitimate? What do you do? Continue with
the planned disciplinary action? Put your decision on hold while
you investigate? Will it look like retaliation if you proceed with
the discipline?
On the one hand, employers have the right to take disciplinary
action. On the other hand, employees have the right to make
good-faith complaints about what they believe is unlawful conduct
without fear of reprisal. In situations such as the one described
above, the issue will be which came first – the decision to
take disciplinary action or the complaint of harassment.
Payback Time
To further the purpose of protecting employees' rights, most
labor and employment laws have "anti-retaliation"
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 anti-discrimination 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' right to raise concerns about safety issues. Federal
and state wage-and-hour laws protect employees' rights to raise
certain concerns related to pay practices. Leave laws protect
employees from retaliation for exercising their rights to request
or take leave. Even the bankruptcy code includes an
anti-retaliation provision that in some circumstances protects
employees who file for bankruptcy protection.
Because these laws protect employees' rights to raise concerns
and take other actions, an employee who raises a concern under one
of these laws is deemed to have engaged in "protected
activity." The employee in the hypothetical above engaged in
protected activity when he complained about harassment. Retaliation
occurs when an employer takes an adverse employment action against
an employee because the employee engaged in protected activity.
Thus, if the employee in the hypothetical above establishes that he
was disciplined because he complained, his retaliation claim likely
will succeed.
Adverse employment actions may take the form of discipline,
discharge, denial of a promotion, transfer, raise, or other
benefit, and pay cuts as well other employer actions that may have
an adverse effect on the employee who engaged in protected
activity.
In many cases, the timing of the adverse employment action is
usually the employee's best evidence of retaliation. By way of
example, Jill is a productive employee. She has an attendance
problem but has never been formally disciplined. In July, Jill
complained about sexual comments by her manager, and about her
coworkers viewing porn at work (the complaint is protected
activity).
In August, Jill is terminated for excessive absenteeism (an
adverse employment action). Jill alleges that her termination was
in retaliation for her July complaints, even though her poor
attendance record is irrefutable. Her theory is that her attendance
was not problem for the company until she made her complaint. She
also may be able to bolster her claim with evidence that other
employees with comparable attendance records who had not made a
complaint were not terminated.
Retaliation claims are on the rise. In each of the last three
years, there were more retaliation charges filed with the EEOC than
any other type of charge. In most cases, the retaliation charge or
lawsuit also includes a claim or claims of discrimination,
harassment, or some other alleged unlawful actions by employer. The
charge or complaint may allege that the retaliation occurred in
response to the employee's complaint about the underlying
conduct believed to be unlawful. Even if the employee does not
prevail on the underlying claims of unlawful conduct, the employee
may still prevail on her retaliation claim if she can show that her
employer took the adverse action against her for engaging in
protected activity.
Staying Out Of Trouble
To avoid these difficult and hard-to-defend cases, many employers
consider employees who have engaged in protected activity to be
somewhat "bulletproof" when it comes to taking
disciplinary action against them. In these situations, even before
taking a legitimate disciplinary action, prudent employers will
carefully consider whether they can convince the EEOC, a jury, or
an arbitrator that the disciplinary action had nothing to do with
the employee's exercise of her protected rights.
Issues to consider are what actions have been taken in the past
under circumstances such as these. Have all employees with the
complaining employee's performance or conduct issues been
treated the same way? Are there established policies and practices
that have been violated? Is there documentation of disciplinary
actions that occurred before the protected activity? Would the
planned disciplinary action seem to an outsider to be the next
logical step considering everything? If the answer is
"yes" to all
these questions, the risk of a retaliation is lessened but not
eliminated. In close calls, smart employers pull back and wait
until next time.
So, what about Jack, who seemingly made a protected complaint in anticipation of disciplinary action? We can't know without more background facts. But one way to lessen the risk in situations such as this one is to document the decision as soon as it is finalized and before it's communicated. The employee's manager can send a simple email to Human Resources or vice versa informing the recipient of the planned disciplinary action and the timing of same before the manager meets with the employee. This simple step should resolve the eternal issue of which came first – at least in this case.
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.