We’re most familiar with discrimination cases and they do get most of the headlines. Retaliation issues and claims remain more obscure.  That’s a big mistake.  Retaliation claims are growing and are typically attached to discrimination allegations. They frequently arise when an employee or applicant claims that an organization took “adverse action” against him because he filed a discrimination complaint, acted as a witness, assisted in a discrimination investigation, or opposed unlawful practices.

On January 26, 2009 the plot thickened. The U.S. Supreme Court, in Crawford v. Metropolitan Government of Nashville, clarified, complicated and expanded the scope of retaliation issues.  The Court held that an employee, who answers questions and conveys information about discriminatory conduct during an internal investigation, is engaging in “protected activity” under Title VII.  Surprisingly, to me at least, some lower courts had found that such involvement would not constitute “active” opposition under Title VII.

The case involved allegations of sexual harassment by another employee.  During an investigatory interview the plaintiff, a 30 year employee, was asked if she had witnessed an employee’s “inappropriate behavior.” She responded that she, herself, had also been subject to harassment. (She had not complained about the conduct.) No action was taken against the purported harasser, but the plaintiff was fired, allegedly for embezzlement. She sued, claiming illegal retaliation under Title VII.

What Should You Do Now?
This case is a good warning that employers must be more careful to avoid even the appearance of retaliation against an employee involved in a discrimination case. A few things to consider include:

The Supreme Court, siding with the employee, basically said that it would be goofy (my word, not theirs) to “protect an employee who reports discrimination on her own initiative, but not one who reports the same discrimination in the same words when her boss asks a question.”   This case will likely serve to further increase the number of retaliation cases.

• Closely review all employment actions taken against an employee who has engaged in a “protected” activity.  (Hopefully do so before the action is taken!). Consider your motivations. Would you treat other employees similarly? Do company policies and practices support the action?
• Train your managers regarding employment law issues and retaliation. Provide them with specific examples of what could constitute retaliation.
• Require that managers avoid even coming “close to the retaliation line.”
• Caution managers to exercise patience and restraint when dealing with employees who have engaged in protected actions.  Sometimes these people are chronic whiners and troublemakers, which makes such restraint difficult.  But that’s all the more reason to proceed with caution.
• Treat the employee like everyone else. Don’t be afraid of or avoid the employee. Many times after a discrimination complaint is filed managers are reluctant to hold the employee to established performance standards. Such avoidance creates the impression that the employee really is treated differently, may give him the idea that he can do whatever he wants, and may alienate other coworkers who believe he’s “getting away with murder.” Continue to document problem behavior or performance as you would for any other employee.
• Require that managers consult with HR before taking employment actions involving employees involved in protected activity. A neutral viewpoint is critical.
• Document, document, document. As always, ensure that your actions are well documented.
• Adopt and enforce “no retaliation” policies. Ensure that they are included in your manuals and handbooks and that your employees are well aware that you take the issue very seriously.
• Continue to investigate discrimination claims promptly and thoroughly.  Employers should not avoid investigating complaints because they fear possible retaliation claims from an employee who is later disciplined. Failure to properly investigate could cost an employer a solid defense to a discrimination claim. 

Given the rising number of retaliation claims and the fact that they are now regularly included with discrimination complaints it is more important than ever to take steps to avoid them.  Otherwise you may end up winning a discrimination case but losing on the retaliation claims.

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