Avoiding Retaliation Claims by Current Employees After Internal - - PowerPoint PPT Presentation

Avoiding Retaliation Claims by Current Employees After Internal Discrimination

• r Harassment Complaints or Legal Actions

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

The audio portion of the conference may be accessed via the telephone or by using your computer's

• speakers. Please refer to the instructions emailed to registrants for additional information. If you

have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.

WEDNESDAY, JANUARY 14, 2015

Presenting a live 90-minute webinar with interactive Q&A Leonard Court, Director, Crowe & Dunlevy, Oklahoma City Arlene Switzer Steinfield, Senior Counsel, Dykema Gossett, Dallas

Sound Quality If you are listening via your computer speakers, please note that the quality

• f your sound will vary depending on the speed and quality of your internet

connection. If the sound quality is not satisfactory, you may listen via the phone: dial 1-866-871-8924 and enter your PIN when prompted. Otherwise, please send us a chat or e-mail sound@straffordpub.com immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again.

FOR LIVE EVENT ONLY

For CLE purposes, please let us know how many people are listening at your location by completing each of the following steps:

• In the chat box, type (1) your company name and (2) the number of

attendees at your location

• Click the SEND button beside the box

If you have purchased Strafford CLE processing services, you must confirm your participation by completing and submitting an Official Record of Attendance (CLE Form). You may obtain your CLE form by going to the program page and selecting the appropriate form in the PROGRAM MATERIALS box at the top right corner. If you'd like to purchase CLE credit processing, it is available for a fee. For additional information about CLE credit processing, go to our website or call us at 1-800-926-7926 ext. 35.

FOR LIVE EVENT ONLY

If you have not printed the conference materials for this program, please complete the following steps:

• Click on the ^ symbol next to “Conference Materials” in the middle of the left-

hand column on your screen.

• Click on the tab labeled “Handouts” that appears, and there you will see a

PDF of the slides for today's program.

• Double click on the PDF and a separate page will open.
• Print the slides by clicking on the printer icon.

FOR LIVE EVENT ONLY

California | Illinois | Michigan | Minnesota | Texas | Washington, D.C.

www.dykema.com

Exceptional service. Dykema delivers.

Avoiding Retaliation Claims by Current Employees After Internal Discrimination or Harassment Complaints or Legal Actions

ARLENE SWITZER STEINFIELD LEONARD COURT DYKEMA GOSSETT PLLC CROWE & DUNLEVY

1717 Main Street, Suite 4200 324 North Robinson Avenue, Suite 100 Dallas, Texas 75230 Oklahoma City, Oklahoma 73102 214.462.6442 405.235.7706 asteinfield@dykema.com leonard.court@crowedunlevy.com

Exceptional service. Dykema delivers. 6

Overview

• Increasing frequency of retaliation claims

– Why the increase? Why are the claims so scary?

• Juror beliefs about retaliation

– While individual jurors may not relate to claims of gender, race, national origin, or age discrimination, jurors “get it” about retaliation. – Jurors believe that while managers may not harbor prejudice against particular protected classes of employees, it is “normal” to want to take action to get back at someone who has accused him or her of discrimination.

• In other words, retaliation makes sense to jurors.

Exceptional service. Dykema delivers. 7

Overview

• Retaliation evokes a sense of injustice among jurors,

and makes them want to punish employers.

• Many retaliation claims succeed even when the

underlying discrimination claims are rejected.

• No good deed goes unpunished.

Exceptional service. Dykema delivers. 8

Elements of a Retaliation Claim

• Protected activity by the employee
• Adverse employment action
• Causal connection between the employee’s protected

activity and the adverse employment action

Exceptional service. Dykema delivers. 9

Laws Prohibiting Retaliation

• Title VII of the Civil Rights Act
• 42 U.S.C. § 1981
• Age Discrimination in Employment Act
• Americans with Disabilities Act
• Occupational Safety and Health Act
• Employee Retirement Income Security Act
• Family and Medical Leave Act
• Fair Labor Standards Act
• Sarbanes Oxley
• Dodd-Frank Wall Street Reform and Consumer Protection Act
• State Fair Employment Practices Acts
• State Workers’ Compensation retaliation prohibitions
• State Whistleblowers Laws

Exceptional service. Dykema delivers. 10

Elements: Protected Activity

• Participated in an activity protected by law –

e.g., filed a charge, filed a lawsuit, participated in an investigation or hearing Note: the participation must be reasonable and may not be disruptive to business operations. The employee must continue to perform the assigned job duties in a professional manner.

• Opposed an unlawful employment practice prohibited by a

statute Note: the subject of the complaint must be a violation of law.

Exceptional service. Dykema delivers. 11

Elements: Protected Activity

• The employer’s actions about which the employee complains

need not actually be tantamount to unlawful discrimination.

• It suffices for the employee to show that he or she had a

“good faith, reasonable belief” that the conduct was unlawful.

• Complaining about a supervisor “harassing” or discriminating

against a plaintiff on some basis other than a protected characteristic does not rise to the level of protected activity.

Exceptional service. Dykema delivers. 12

Elements: Adverse Employment Action

Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).

• The employee must demonstrate that the employer took an

action that would be materially adverse to a reasonable employee or applicant -- i.e. that “might well have persuaded a reasonable worker from making or supporting a charge of discrimination.”

• Need not be an ultimate employment action such as hiring,

firing, or promotion.

• The alleged harm must not be merely “trivial.”

Exceptional service. Dykema delivers. 13

Elements: Adverse Employment Action

• Hunter v. Secretary of U.S. Army, 565 F.3d 986 (6th Cir. 2009)

Summary judgment was affirmed because the decision makers were not aware of the protected activity, and the alleged adverse actions were nothing more than “petty slights and minor annoyances,” including work package being delayed for a week, being moved to a new work unit, and being required to leave a note whenever he left his work station.

Exceptional service. Dykema delivers. 14

Elements: Causal Connection

• Temporal Proximity

– Is temporal proximity enough, standing alone, to prove causation? No. Clark County School District v. Breeden, 532 U.S. 268, 273-74 (2001).

• What if a period of several years has elapsed between the

protected activity and the adverse action?

• Malin v. Hospira, Inc.,___ F.3d ___, Case No. 13-2433

(August 7, 2014).

Exceptional service. Dykema delivers. 15

Other Notable Retaliation Cases

• Thompson v. North American Stainless, LP, 131 S. Ct. 863

(2011)

• Crawford v. Metropolitan Gov’t of Nashville, 555 U.S. 271

(2009)

Exceptional service. Dykema delivers. 16

Evidentiary Standard

• Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 133 S. Ct.

2517, 186 L. Ed. 2d 503, 2013 U.S. LEXIS 4704,118 Fair Empl.

• Prac. Cas. (BNA) Cases 1504 (2013)

In a 5-4 decision, the Supreme Court held that, to prevail

• n a claim of retaliation in violation of Title VII, the plaintiff

must meet the but-for test of causation, rather than the less stringent motivating-factor standard: The plaintiff must establish proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.

Exceptional service. Dykema delivers. 17

How Far Do Anti-Retaliation Protections Extend?

• “I dare you to fire me”
• Employees are not immune from discipline just because they

have engaged in protected activity.

• May employees engage in self-help discovery?
• May employees discuss their cases during working time?
• Must employers be held hostage by employees who have

engaged in protected activities?

• Strike a balance between the employee’s right to assert legal

claims vs. the employer’s right to manage its business.

Exceptional service. Dykema delivers. 18

A most difficult situation: litigation against a current

employee

• Overall Strategy:

– If retaliation makes intuitive sense to jurors, then the employer must make it equally intuitive that retaliation was not the employer’s objective.

• Plant the question in the jury’s mind:

– Why would the employer go the extra mile for an employee and not impose discipline if it was intent on getting back at the employee at some date months later?

Exceptional service. Dykema delivers. 19

Best Practices for Employers When Sued by an Employee

• Pick your battles cautiously.
• Follow your established guidelines.
• Treat employees fairly, and with dignity and respect.
• Be consistent.
• Always proceed in good faith.
• Give the employee a contact person within the company for

lodging their concerns about alleged continuing retaliation.

Exceptional service. Dykema delivers. 20

Best Practices for Employers When Sued by an Employee

• Effectively document discipline, especially the timing of the

decision to discipline.

• Coach managers in supervising an employee litigant.
• Treat employees in sensitive positions respectfully while

implementing justifiable restrictions on their access to information.

• If termination is necessary, consider a severance package

with a release.

Exceptional service. Dykema delivers. 21

Rolling the Dice: Terminating the Employee Who Has Engaged in Protected Activity

Can an employer ever prevail against an employee whose employment is terminated after protected activity occurs?

Exceptional service. Dykema delivers. 22

The Ultimate Question for Employers

A balancing act: Is the employee’s performance or workplace conduct sufficiently disruptive to the employer’s operations to risk liability for damages?