Interpreting adverse action

Businesses can do many things to avoid retaliation claims

Carol McCaulley
Schwabe, Williamson & Wyatt

In recent years, employers have become more successful in defending against claims of discrimination or harassment, but are now often also being hit with claims of retaliation. Claims of retaliation are now part of 26 percent of employee charges before the Equal Employment Opportunity Commission (EEOC). These claims are much harder for the employer to win. All an employee needs to do is show that: 1) the employee either complained of, or helped a fellow employee with a complaint related to discrimination or harassment; and 2) the employer later took an adverse action against the complaining employee.

What constitutes an "adverse action?" These claims often involve disciplinary action such as firing, changing shift or transferring, but have included simple things like a supervisor treating an employee "coldly" following a complaint. The U.S. Supreme Court recently made it easier for employees to bring these claims by giving a broad interpretation to what could be considered an "adverse action." The adverse action can be anything, employment related or not, that a reasonable employee would consider materially adverse. The court went on to describe an adverse activity as any action or behavior that would discourage a reasonable worker from making or supporting a claim of discrimination.

While on the surface antiretaliation laws appear fair, in practice they put a chokehold on an employer’s ability to deal with legitimate workplace issues. An employee who is having performance problems at work, and suspects that termination is imminent, may complain of discrimination or harassment. If the employer proceeds with disciplinary action, they may be sued for retaliation. Unfortunately, an employee’s original complaint does not need to be valid for the employee to win a retaliation case.

Many employees bring valid complaints that their employers handle correctly. In reality, even the most conscientious supervisor is apt to find it hard not to treat an employee who has complained about them differently. If nothing else, the supervisor often becomes cautious in future interactions with the complaining employee. This change in demeanor may be perceived by the complaining employee as retaliatory and may lead to legal action.

While it may be impossible to completely avoid the possibility of these claims, there are some protective steps an employer should consider:

1. Review company policies related to discrimination and harassment to ensure that they contain a strong statement prohibiting retaliation following a complaint and make sure that the policy is actually enforced.

2. Regularly remind all employees of the discrimination and harassment policy, including the policy against retaliation.

3. Provide training to supervisors and their staff on discrimination, harassment and retaliation policies at least once a year.

4. If an employee makes any complaint, take immediate steps to investigate the allegations. Remind all those involved of the policy against retaliation and monitor the situation to ensure that no retaliation occurs.

5. Following the resolution of the complaint, meet regularly with the complaining employee to check for any form of retaliation. These meetings should be documented in the employee’s file. If the complaint involved a supervisor’s conduct, regularly remind the supervisor of the policy against retaliation and, if possible, provide the supervisor with some outside counseling to help avoid retaliatory behavior.

6. Consistently document performance issues for all employees. Employers often get into trouble by documenting performance only for employees that have raised complaints or whom they consider to be "litigious."

While there is still no black-and-white test to determine what conduct may be considered retaliatory, a well-trained workforce will help an employer avoid exposure to claims of retaliation.

Carol McCaulley is a shareholder with Schwabe, Williamson & Wyatt. She can be reached at 360-905-1101 or cmccaulley@schwabe.com.

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