Courts make it harder to fight retaliation claims
June 3, 2008 by Sam NarisiPosted in: Age Discrimination, Recent Decisions, Special Report
The Supreme Court recently ruled on two employment cases. The result: It’s now even harder to fight retaliation claims.
In the first case, an African-American employee claimed he was fired for bringing a complaint to his supervisor (he believed a co-worker had been discriminated against).
Most retaliation suits are brought under Title VII of the Civil Rights Act of 1964 – but in this case, the employee couldn’t do this because his EEOC charge wasn’t filed properly. Instead, he sued under an 1866 law that also protects employees from racial discrimination.
Unlike Title VII, the older law doesn’t mention retaliation. But the Court ruled for the employee, saying the ban on discrimination also implied a ban on retaliation.
Implied protection
The second case involved a government employee who sued for retaliation. She was fired after filing an age discrimination complaint. The section of the Age Discrimination in Employment Act (ADEA) that applies to federal workers doesn’t mention retaliation (the section for private employers does).
But like in the case above, the court ruled that a protection against retaliation was implied by the law.
What’s it mean for employers?
The decisions may not have a huge direct impact, employment attorneys say. Title VII already covers retaliation cases and the ADEA decision only applies to federal workers.
But the message to all employers is clear: Courts are more willing than ever to let employees sue for retaliation. That’s bad news for companies, since the number of retaliation claims made each year is already on a quick rise (they now make up 32% of all the charges filed with the EEOC).
What can HR do about it? Now’s a good time to re-train managers on retaliation, reminding them to document all their decisions and watch how they treat employees after any complaint is filed.
Cite: CBOCS West, Inc. v. Humphries and Gomez-Perez v. Potter
Tags: ADEA, retaliation, Supreme Court
June 11th, 2008 at 3:15 pm
Sam,
Excellent article. One of the key areas in limiting employer liability is providing managers and supervisors with a proper understanding of employee retaliation claims and what the the laws and statutes allow. It should be included in every management training program.
George K.
June 25th, 2008 at 1:19 pm
Train, Train, and Train is the key. It is very important to expose managers and supervisors to proper training and understanding the laws that can affect there employer. It is the EEOC manager’s responsibility to implement a training program along with a job aide to assist managers and supervisors. I also think a hot line would be great for employees. The sooner a problem is address the quicker it can be resoloved with hopes that it does not lead to the termination of an employee.
July 6th, 2008 at 2:40 am
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July 30th, 2008 at 10:44 am
An employee was fired for cause (damaging product and continuing to damage the product after three warnings). The employee retaliated against us by filing for age descrimination with the State Attourney Generals office. We believe his retaliation was because he didn’t get unemployement because of being fired for cause. There should be a law that keeps ex-employees from doing this. It ends up that the investigator of the case, after seeing we had 70 pages of documentation, offered us a deal that would not make us admit to any guilt (which there was none) but would be alot cheaper than if we took it to the court system. It was cheaper for us as a company to pay the jerk off than to go to court. This is totally unfair and we, as employers, should have some kind of protection from this garbage. Our choices were to fight it in court, or pay him $900. What would you do? Lawyers would have charged us more than that alone and then we would have had to pay court costs and everything else. Is this fair?
January 7th, 2009 at 11:17 am
Sharon, I agree with you. Why is it that anyone can do that and use up a companies resources for just being angry. We had an employee that quit and then filed for unemployment which was denied after 2 appeals. He then proceeded to file a retaliation suit against the company. We are putting so much time and effort into this one former employee, and he doesn’t want a pay out, he wants a day in court. I guess the judge at the Employment Developement Department wasn’t good enough for him. So now we wait to see what comes next. We have files that are 3 inches thick each on documentation and we are just praying that that is enough.