Working With a Complainer: Avoiding Claims for Retaliation
Like most businesses, retailers sometimes face claims of employment discrimination from current employees. Many times those claims are made against individual supervisors as well as against the business itself. Often, the claims are filed by current employees who continue to work after complaining, in a very personal way, about the conduct of the people who supervise them. For employers generally, and individual supervisors in particular, working with an employee who is also a claimant or plaintiff presents particular challenges. How can you and your managers continue to work with an employee who is suing your store?
In addition to broad prohibitions against discrimination, state and federal anti-discrimination laws broadly forbid retaliation. Retaliation involves an adverse action by an employer against an employee because of the employee’s opposition to discriminatory practices or his or her participation in a process created under a relevant statute (like pursuing a claim with a state agency). The definition of retaliatory conduct is, in the wake of recent court decisions, loose enough to include conduct that falls short of an obvious employment action (like demotion or firing). Broadly stated, any conduct that would discourage an employee from asserting a claim in the future can be retaliatory (in one case, discipline against a romantic partner was held retaliatory). Accordingly, if one of your employees files a claim, the law gives the employee fairly broad protection.
Employment lawyers often warn clients that retaliation cases are harder to defend than the underlying claims of discrimination themselves. This is both because of the broad legal definition of retaliatory conduct and because of the real human tendency to retaliate. This latter point is basic -- if someone goes to an agency and says something about a supervisor that is either embarrassing or untrue, the supervisor is likely to react in a hostile fashion. Any such reaction can be the basis of a retaliation claim. Moreover, courts and administrative agencies are highly skeptical of adverse actions against complaining employees that follow the complaint closely in time. As a consequence, an employee who complains or goes to an administrative agency is well-protected by law. Frustratingly, the complaining employee sometimes imagines that he or she is now bullet-proof and acts accordingly.
A Discrimination Claim Is Not a Shield
At the same time, however, the protection is limited to protection against actions reacting to the complaint or claim. A bad employee does not get to keep his or her job just because of a discrimination claim. The underlying at-will relationship is not changed by the fact of a complaint or charge; instead, an employer needs simply to tread carefully and to scrutinize any decision to discipline or fire such an employee. Careful employers keep careful records of performance. Those records can provide solid support for discipline, even termination of an employee who has asserted claims or filed a charge. Without written records, including emails, courts and agencies may assume that any such action is a response to the employee's effort to vindicate his or her rights.
For an employer, there are three takeaways here. First, keeping track of employee performance and recording concerns or failings is of primary importance. Second, employees who assert claims need to be treated as if they had not done so. And, third, any discipline or termination proceeding against an employee who has filed a claim or charge should be closely scrutinized, particularly if it is close in time to the employee's assertion of his or her rights. Employment law often reflects human weakness; avoiding retaliation claims requires acknowledging such weakness and endeavoring to prevent it from prevailing.