As reported in the New York Times by Catherine Rampell in More Workers Complain of Bias on the Job, a Trend Linked to Widespread Layoffs, employers are seeing an increase in accusations of discrimination. Discrimination claims including discrimination based on race, gender, disability and age continue to increase, but the most frequently filed charge with the Equal Employment Opportunity Commission (“EEOC”) in 2010 was retaliation claims, where employees allege that they suffered retribution for engaging in protected conduct (such as reporting discrimination to human resources or filing a charge of discrimination with an administrative agency such as the EEOC). Then earlier this year, the United States Supreme Court in Thompson v. North Am. Stainless, LP (pdf), added a new retaliation claim—association retaliation, which occurs when an employee is subject to a material adverse employment action (such as a pay cut, demotion, termination) because a relationship with another employee who engaged in protected conduct. The employee making the association claim need not have engaged in his/her own protected conduct as long as the employee is in the zone of interests with the employee who did. (Details of the case are available on Squire Sanders’ Sixth Circuit Appellate Blog)
So how should employers avoid or defend retaliation claims? Employers should not panic and refuse to discipline an employee simply because the employee or an employee within a “zone of interests” complained of discrimination. Instead, employers should:
· Document all discipline and performance issues as early as possible
· Conduct honest evaluations on a regular basis
· Maintain a separate, stand-alone anti-retaliation policy and train employees on the policy
· Be consistent
· Identify employees who have engaged in protected activity and monitor the situation
The key to minimizing retaliation claims is to thoroughly document personnel decisions and base those decisions on actual performance. While employers can never base a decision on the fact that the employee made a complaint, employers who have documented poor performance or unacceptable behavior can safely discipline or terminate such an employee.