A new Supreme Court ruling sends managers a message about conducting complaint investigations: Watch how employees serving as witnesses are treated — or the company could be hit with a retaliation claim.

The background of the case:

Vicky Crawford worked for the Metropolitan School District in Nashville, TN. One of her co-workers filed a sexual harassment complaint against their supervisor.

As part of the ensuing investigation, Crawford was asked if she’d ever witnessed any harassment. She said, yes, she’d seen the supervisor harass other employees — and was harassed herself on several occasions. She provided a list of inappropriate sexual comments the supervisor had said to her during her tenure.

Despite that testimony, the alleged harasser was never fired or disciplined. Shortly after the investigation, Crawford was fired — the school district claimed she’d been embezzling.

She sued, claiming the embezzlement allegations against her were false and she was really fired in retaliation for her comments during the investigation.

Protection for witnesses?

Two lower courts ruled against Crawford, stating that Title VII’s anti-retaliation provisions only apply to employees who file their own discrimination claims or participate in formal investigations by the EEOC.

But the Supreme Court disagreed. Employees are protected from retaliation whenever they “oppose” an employer’s unlawful actions — and, according to the Court, that includes an employee who participates in an internal investigation.

The lesson for managers: Be cautious when dealing with any employees involved in a complaint investigation. Employees who confirm allegations of harassment or discrimination can’t be treated differently than those who don’t.

And, of course, it’s key to document all performance or behavioral issues regarding those employees in case the company has to fight future retaliation claims.

Cite: Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee

Read the facts of this real-life case and decide: Who won?

The facts:

An African-American employee helped conduct interviews to hire a new member of her department. One of the candidates was an African-American woman that she recommended. However, the manager hired a white applicant who was more qualified, and the employee complained that the selection was biased. A few months later, the employee was fired due to performance problems.

The employer said:

The woman was fired because of documented performance problems — any complaint she made had nothing to do with it.

Who won the case?

Answer: The employer.

Why: In retaliation cases, companies can still be on the hook even if they prove an employee’s initial complaints were invalid. If the employee believes he or she was making a legitimate legal complaint, and the company retaliates, the employer will likely lose in court.

But that doesn’t mean an employee can claim retaliation based on just any frivolous complaint. According to the court, employees must have an “objectively reasonable” belief that they’re raising a valid concern.

In this case, the employee had no basis for believing the company had discriminated, so her retaliation claim didn’t fly. The case was thrown out.

Cite: Coleman v. Loudoun County School Board

The three big employment cases the Court will rule on:

1. AT&T Corp. v. Hulteen

The case involves an employee who’s suing over lost pension benefits. She claims her benefits were lowered because of time she missed while taking two pregnancy leaves. That’s a violation of the Pregnancy Discrimination Act (PDA).

But there’s a twist: The leave was taken decades ago, before the PDA was passed. Under the company’s old policy — which was legal at the time — the time off wasn’t counted as hours worked for her pension eligibility. She won in both the district and appeals courts on the grounds that the law was in effect at the time she suffered the financial loss (i.e., when she retired).

2. Crawford v. Metropolitan Govt. of Nashville

An employee was fired after she served as a witness during an internal sexual harassment complaint investigation. She sued for retaliation.

The employer claims the laws barring retaliation against witnesses only apply to people who participate in formal EEOC investigations. The employee claims the law applies to her case, as well.

3. 14 Penn Plaza v. Pyett

As part of a collective bargaining agreement, employees signed a document waiving the right to sue for age discrimination. They sued anyway, claiming the waiver was unenforceable because the Age Discrimination in Employment Act guarantees them the right to sue.

We’ll keep you posted on how the Court rules.

When employees make harassment or bias complaints, managers know not to retaliate. But too many make a mistake in the other direction — and avoid taking any action against the employee again, even when it’s well deserved.

When employees complain, does that mean they get a lifetime pass to avoid discipline or termination?

Of course not — they still need to face the consequences of poor performance or bad behavior, just like everyone else. But it does mean managers need to take some extra care when dealing with employees who’ve made legal complaints.

In one recent court case, a part-time employee filed a sexual harassment complaint. Her manager gave the accused co-worker a warning. The employee complained to her boss’s supervisor that more needed to be done, and the accused harasser got a second warning.

Shortly after that, the manager eliminated the employee’s position by combining it with another part-time job. She couldn’t work that many hours, so the other part-timer took the full position and the employee was let go.

She sued for retaliation. The company argued she would’ve lost her job anyway.

But the court ruled that the short time between the employee’s complaint and the termination — plus the fact that there was no documented evidence that the boss had considered combining the two jobs before the complaint was made — was suspicious enough to send the case to trial.

Cite: Magyar v. St. Joseph Regional Medical Center

Where do courts draw the line on retaliation?

In another recent case, an employee filed a complaint about harassment she claimed she witnessed against two of her co-workers.

Several months later, she was terminated. Why? She’d made several costly mistakes in her work. The company had to shrink her department and, based on her previous performance, decided she was the one to let go.

She sued, but the court ruled in favor of the company. The reduction-in-force was thoroughly planned and the woman’s slip-ups were well-documented. Therefore, it was clear she would’ve lost her job even if she didn’t make the harassment complaint.

Cite: Van Horn v. Best Buy Stores, L.P.

Lesson: Document, document, document

What set the companies apart in these two cases?

Answer: Documentation.

Courts look closely at the timing of companies’ decisions — if an employee’s disciplined or fired shortly after filing a complaint, it can be hard to convince a judge the decision was unbiased.

But as the latter case shows, it’s not impossible — as long as the manager keeps strong documentation.

The facts:

An employee filed a sexual harassment complaint against a co-worker, and the company investigated. While the investigation was still going on, the woman was called into a meeting with two of her supervisors. Assuming they wanted to talk about her complain, she sneaked a tape-recorder into the room to gather evidence in her favor (though the meeting was actually about her struggling performance). Once the company found out about her espionage work, the woman was fired. She sued, claiming unlawful retaliation.

The employer said:

The employee wasn’t fired because she complained about harassment — she was fired because she engaged in inappropriate conduct. Even if the conduct was related to her harassment claim, it was still worthy of termination.

Who won the case?

Answer: The employer.

Why: The court agreed that secretly tape-recording a meeting was grounds for termination. As the judge said, the law protects employees who complaint about legal violations but does not give them “a license to engage in dubious self-help tactics or workplace espionage in order to gather evidence of discrimination.”

The company did the right thing by investigating the woman’s complaints. Her own behavior was to blame when she was terminated before the investigation was finished.

Cite: Argyropoulos v. City of Alton

An employee was denied several promotions over a short period of time. His explanation: He was being retaliated against because his wife — who worked for the same company — had sued for FMLA violations.

The court didn’t buy it. Why not? Because the man was never actively involved in his wife’s lawsuit. The FMLA didn’t offer any protection just because he was married to someone who sued the company.

FMLA retaliation is possible

Employees can sometimes sue for retaliation based on other people’s FMLA claims. In this case, the employee could have won if he had:

• helped his wife file a charge or complaint
• participated in an investigation, or
• testified on her behalf.

Cite: Elsensohn v. St. Tammany Parish Sheriff’s Office

Here’s what happened:

An employee of the city of Cambridge, MA, filed a discrimination suit against the city. The case was thrown out.

But for the next five years, she claimed, her manager over-scrutinized her work and gave her unfair reviews, in an attempt to force her to quit. Eventually, she was told she was getting fired, and she resigned.

She took the city to court again. But this time, a jury awarded her $4.5 million for retaliation.

That’s a tough lesson about keeping managers trained on how to handle employees who’ve taken protected action.

The facts:

The company changed the way it scheduled shifts to reduce the number of overtime hours. Some workers objected to the change, and a line supervisor complained to upper-level management on their behalf. Soon after, he was fired for poor performance. He claimed it was because of his complaint, and he sued for retaliation.

The employer said:

Employees can only sue for retaliation if they complain about a violation of the law. But the schedule change was perfectly legal, so the man had no reason to sue.

Who won the case?

Answer: The employer.

Why: The court pointed out that companies can get hit with retaliation claims without having broken the law in the first place. But that’s only if the employee believes the law was broken and files a complaint accordingly.

In this case, nothing in the supervisor’s complaint had anything to do with the legality of the schedule change — he just said his workers were upset about losing the OT hours.

Cite: Hagan v. Echostar Satellite, LLC

Disciplining problem employees can get tricky for managers — especially when it’s a lax performer who just got back from medical leave. Here’s how to protect your company against retaliation suits.

Take this recent case:

A department manager took medical leave. While she was out, the company conducted a regularly scheduled audit of her department to measure its performance in various areas. The department failed the test.

When the manager came back, she was told she’d have to raise the department’s score by a certain amount, or — in accordance with company policy — she’d be disciplined and possibly fired.

She quit before that could happen, though, and sued the company. She claimed the new performance goal “changed the conditions of her employment” in violation of FMLA, and felt she was held to those high standards in retaliation for taking leave.

Significant change?

The court threw the case out. Why? Because the law doesn’t grant employees favorable treatment just because they took FMLA leave. Companies have been hit with retaliation suits for scrutinizing an employee’s work more closely than others’ — but in this case, the company was able to show the audit would have happened anyway, and the employee was merely held to a standard set of requirements.

Also, the woman shot herself in the foot when she voluntarily quit. She claimed she was given an impossible goal — which was tough for her to prove since she didn’t even try.

3 keys

This case shows that, yes, employees can be legally disciplined after returning from FMLA leave. Here are some of the keys to compliance the company followed:

• The company was consistent — The audit standards were clearly established and consistently enforced with all managers. If, on the other hand, the woman was held to higher standards than her peers, it might have been easy to claim retaliation.
• There was nothing new — The woman claimed her job had been changed significantly, but in reality, all the company did was enforce a pre-existing policy.
• It would have happened if she didn’t take leave — The department would have been audited whether the woman took FMLA leave or not. Also, the company made sure the audit covered things the manager should have fixed before her leave, rather than areas that were out of her control because she took time off.

Cite: Chandler v. La Quinta Inns, Inc.

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