Dallas Bar Association

Why Your Clients Need Anti-Retaliation Training—PRONTO!

by Mary Goodrich Nix

The Old Testament’s biblical injunction “Eye for eye; tooth for tooth; …” [Ex. 21:23-25] is one of the first recorded laws against retaliation, meant to curtail excessive vengeance that might have provoked a spiral of retaliatory attacks.

Retaliation laws figure prominently in modern employment law. While most practitioners think of unlawful retaliation in terms of Title VII prohibitions, there are a range of retaliation claims contained in a variety of federal and state laws. Both because of the broad reach of retaliation laws and the increased likelihood that your clients will face a retaliation lawsuit, your clients need anti-retaliation training—pronto!

To be successful, an employee must typically prove three elements: (1) a “protected activity;” (2) an “adverse employment action;” and (3) the adverse employment action would not have occurred but for the protected activity.

Examples of protected activity include filing a discrimination charge, assisting others in filing a charge, opposing unlawful employment practices by complaining about discrimination and being a witness in an investigation.

A common misunderstanding is that a plaintiff who claims retaliation for making a complaint about an employment practice must prove that the conduct at issue was actually illegal. This is not true. The employee must only have a reasonable and good faith belief that the conduct was illegal. And, in March, the Supreme Court ruled in Kasten v. Saint-Gobain Performance Plastics that oral, as well as written, complaints could lead to retaliation.

Historically, laws have prevented retaliation against the person who engaged in a protected activity. The Supreme Court recently extended Title VII’s anti-retaliation protection in Thompson v. North American Stainless, LP, holding that adverse actions taken against a person closely associated with an employee who has engaged in a protected activity could violate Title VII (termed “Associational Retaliation”). Thompson alleged that he was terminated in retaliation for his fiancé’s EEOC charge against their employer. Notably, the Supreme Court refused to define a “fixed class of relationships” at issue, acknowledging only that termination of a close family member would “almost always” trigger protection, while a mild disciplinary action of an acquaintance would “almost never do so.”

Employers commonly believe that retaliation only applies to terminations. It never has. Retaliation laws are very broad in their reach. The Supreme Court held, in Burlington Northern & Santa Fe Railroad Co. v. White, that retaliation includes any materially adverse action by the employer, even where the traditional terms and conditions of employment are not impacted.

A few examples of adverse actions include reassignment to a less desirable position or schedule; transfer to another location; litigation conduct (filing suit, counterclaims, asserting certain defenses); exclusion from events which might impact an employee’s professional development or advancement; and even lower performance evaluations. Retaliatory conduct can also be found for actions which occur after termination of the employment relationship.

Most retaliation claims turn on evidence of a causal connection between the adverse employment action and the protected activity. Summary judgment is difficult, however, because courts often find a fact issue in favor of the plaintiff. Examples are brief time intervals between the protected activity and the adverse action; failure to document performance warnings; a sudden surge in performance warnings; failure to follow disciplinary or termination procedures; or treating other employees differently for engaging in similar conduct.

Historically, the largest percentage of charges to the EEOC have been race and gender discrimination claims—until 2007, when retaliation claims exceeded the number of gender discrimination claims. Last year, retaliation claims ranked number one, exceeding the number of charges made on any other basis. Consider that there were 7,900 claims of retaliation filed in 1991. In 2010, there were 36,258 retaliation charges filed.

A common question by the EEOC: When was the last management training conducted? The EEOC believes that employers who fail to train their managers on anti-retaliation laws are not taking all the steps necessary to prevent it and are showing a reckless disregard for the law (an argument used in favor of punitive damage awards).

Your clients must be proactive in establishing training for both management and employees, and in regularly conducting training sessions to keep employees informed.

When compared to the increasing risk of a retaliation claim and the defense costs of $25,000-$500,000+ associated with such a claim (not including judgment or settlement), a few thousand dollars on annual training would be money well spent.

Mary Goodrich Nix is Co-Managing Partner of the Dallas office of Gordon & Rees, LLP. Ms. Nix is Board-Certified in Labor and Employment Law. She can be reached at mnix@gordonrees.com.

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