Tips for Avoiding Retaliation Claims

Employee claims alleging retaliation for engaging in protected conduct are prevalent and an area of significant legal exposure. For example, a former attorney at a multinational law firm that employs hundreds of attorneys worldwide recently filed an Equal Employment Opportunity Commission (EEOC) complaint against the firm alleging she was fired for requesting maternity leave. Although she apparently received no adverse performance reviews or criticisms before her firing, the attorney was fired six days after she submitted a formal request for maternity leave.

The timing of the firing in this case may make this retaliation claim difficult to defend. Unless the law firm provides a clear, legitimate anti-retaliatory explanation for the adverse employment action, this matter could go to trial and result in a significant damages award for the former employee.

The facts in the complaint, though not yet established, highlight difficulties with taking an adverse employment action against an employee, especially after they have engaged in a protected activity such as filing a harassment complaint, taking FMLA leave, or requesting maternity leave. Under the law, engaging in a protected activity does not insulate an employee from discipline, if merited; however, employers must exercise caution when disciplining under these circumstances because improper motive may be inferred if appropriate precautions are not taken.

Here are four items to consider for avoiding a retaliation claim:

1. Recognize when an employee has engaged in a protected activity

The EEOC, the Michigan Department of Civil Rights, and other federal, state, and local agencies enforce laws that protect employees and applicants from discrimination based on a variety of protected characteristics. These laws also make it unlawful for an employer to retaliate against employees for bringing such complaints or engaging in a protected activity, like reporting a wage and hour violation, a workplace safety concern, or discrimination allegations.

An employee’s protected activity may take many forms, including:

• taking protected leave,
• refusing sexual advances,
• seeking accommodation for a disability,
• filing a complaint with a school or a state or federal agency,
• serving as a witness in an investigation of discrimination or retaliation, and refusing to follow a directive that would result in discrimination or unlawful harassment.

Please note that the claim underlying an employee’s protected activity does not need to be proven to support a retaliation action. All that is required is that the claim be brought in good faith. It is therefore usually not a defense to retaliation to assert that allegations underlying a protected activity are false.

2. Establish a system for handling complaints

Schools should have clear policies and administrative guidelines addressing the procedure for responding to a retaliation claim. School officials should promptly and thoroughly engage in fact-finding that includes interviewing the complaining employee, anyone against whom the complaint is made, and any witnesses that may provide relevant information. Review relevant policies and records before reaching a conclusion.

3. Discipline only for legitimate, provable reasons

Schools should ensure that all disciplinary decisions are based solely on the evidence gathered in the fact-finding investigation and are not based on the reporting of alleged employer misconduct. If possible, the individual who issues the decision should not be the target of the employee’s original complaint.

4. Train supervisors on common pitfalls

Schools should ensure that administrators and supervisors are trained on school policies, complaint processing procedures, investigations, and what constitutes unlawful retaliation. An untrained supervisor may view employees who complain as troublemakers, rather than individuals raising potentially valid concerns that should be promptly and thoroughly addressed. Any adverse employment action based on such a motive creates significant legal risk.

If you have questions about the application of these recommendations or are concerned about a retaliation claim, contact a Thrun labor attorney to help you navigate the process.