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  3. Written Testimony Of Karen M. Buesing, Partner, Akerman LLP

Written Testimony Of Karen M. Buesing, Partner, Akerman LLP

Meeting of June 17, 2015 - Retaliation in the Workplace: Causes, Remedies, and Strategies for Prevention

I. The Flood of Retaliation Claims

The EEOC is rightly concerned with the explosive growth of retaliation claims. The total number of charges filed under all statutes alleging retaliation-based discrimination in FY 2014 was more than double the number of charges filed in 1997 and represents 42 percent of the total charges filed.1 Retaliation charges have surpassed race charges, which previously claimed the number one spot.

Employers are even more concerned. Retaliation claims are easy to tack on to underlying claims. They may enhance the perceived legitimacy of the underlying claims, and on their own, they enjoy a perceived legitimacy even when the underlying claims lack merit. They provide an additional basis to recover, and until the Supreme Court's decision in Nassar2, they were easier for Plaintiffs to prove.

Why? Because it is widely assumed that it is human nature to be annoyed, upset, and even angry with someone who accuses you of wrongdoing, and that there would be a tendency to want to get even. Therefore, one would find it plausible -- maybe even probable -- that a supervisor would retaliate against a complaining employee. And there is research suggesting that most jurors are more willing to believe that a supervisor would retaliate against a complaining employee.3

But consider the flip side of human nature. It is also human nature to be annoyed, upset, and even angry with your supervisor when your own perception of your performance is excellent but your supervisor's is not. Indeed, it is natural to deflect blame rather than accept one's own shortcomings. Accordingly, is it not equally plausible -- and indeed even probable -- that an employee actually "retaliates" against the supervisor by filing a retaliation charge in such circumstances? And why wouldn't an angry employee do so, since Title VII's protections under the participation clause extend to a charging party regardless of whether the underlying charge is false or even brought in bad faith? There is simply no down side for an employee to falsely claim discrimination when facing discipline or termination, and then claim retaliation when the discipline or termination take place. The best defense is a good offense.

Hence the explosion in retaliation claims. Again and again, employers are faced with an employee who has engaged in misconduct or performed poorly, knows his or her job is on the line, and makes a claim of discrimination in the hopes of creating job security.

You have asked how these claims actually play out in the field, so let me share a few anecdotes. Employees widely believe that they are untouchable once they have asserted a claim. I had one case where an employee complained of discrimination internally after receiving a poor performance review, and the first thing she said to the investigator was, "Now that I filed this complaint, how long am I protected for?"

In another case, after a department head became angry that the CEO did not give her a more significant pay increase, she orchestrated a three-day walkout of her whole department, leaving the business unable to access key records during a critical phase of an acquisition. During those three days, she prepared and mailed to the Board of Directors a complaint of discrimination. In the meantime, before the CEO was aware of her allegations, he decided to terminate her. When she returned to work and was terminated, she refused to leave the premises insisting that since she had filed a complaint, the company could not terminate her, period. She had to be escorted from the premises by the Sheriff's Office.

These are not unique situations; unfortunately they are common scenarios for Employers. Employees make frivolous complaints of discrimination as a means of establishing job security when the handwriting is on the wall. For employers, this is very troubling trend. An employer who makes a legitimate termination decision can have its business and reputation destroyed and still be forced to continue to employ someone who seriously damaged the company, even when that person's allegations were flat out false.

Employers are at a distinct disadvantage when it comes to retaliation claims. Research has shown that jurors will be quicker to infer a motive of retaliation than they will a motive of discrimination based on other protected categories. This is because most jurors can relate to being motivated to retaliate against someone who wrongs you. Regardless of the reason provided by the supervisor for an adverse action, the average juror assumes that an employer is angry and upset with an employee who claims the employer discriminated against the employee, and would therefore be inclined to retaliate.4 Thus, employers who make employment decisions based on legitimate business reasons are often penalized for perceived -- but not real -- illegitimate motivations.5

This is why retaliation claims are, as one commentator said, "more equal than others."6 Unlike any other claim, an employee, by filing a complaint of discrimination, can become a member of a protected class to which he / she did not previously -- and could not otherwise -- belong.

And equally troubling for an employer: when an employee has made a false claim of discrimination for leverage or job security, how does the company then trust that employee going forward to be honest and exercise good judgment in his / her business dealings on behalf of the company?

I do not mean to suggest that retaliation never occurs. Certainly, I have seen several reported decisions with facts that leave me certain that the employer did not have good employment law counsel advising them - or else the employer failed to heed the advice. However, my personal experience and that of many of my management colleagues suggests that most retaliation charges are simply without merit.

In fact, the EEOC charge statistics bear that out: of the 37,955 retaliation charges brought in FY 2014, only 1,079 resulted in a reasonable cause finding, 2.9 percent. So the largest percentage of the EEOC's charges are retaliation claims and yet only a very small percentage warrant cause findings, even in the EEOC's eyes.7

II. The "But-for Causation" Standard

The United States Supreme Court in Nassar clearly recognized employees can too easily make frivolous complaints in order to set up retaliation claims. The Nassar decision should stem that tide by requiring an employee to show that his or her protected activity was a "but-for" cause of the adverse action. The Court expressly noted that accepting the lesser "motivating factor" standard could "contribute to the filing of frivolous claims, siphon resources from efforts by employer, administrative agencies, and courts to combat workplace harassment."8 The Court described a situation well known to employers: the circumstance of an employee "who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location. To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual or religious discrimination; then, when the unrelated employment action comes, the employee could allege that it is retaliation."9

III. How Do We Stem The Tide? Embrace Nassar

The Commission has requested suggestions from the employer community for reducing retaliation charges. In considering that, I looked back at the EEOC's 2012-2016 Strategic Enforcement Plan, which set national priorities10 and called on the agency to target its resources to have a broad impact in reducing employment discrimination. The SEP expressly directed that charges or cases should not be pursued, even if they fall within a priority category, unless a "rigorous assessment" of the merits determines "significant law enforcement potential."11 The SEP also provided that all charges are to be screened promptly and throughout the course of investigation, and that the charge's priority charge handling category designation should be re-evaluated on an ongoing basis and promptly re-categorized, as appropriate. The SEP directed that charges - whether raising priority issues are not -- should be dismissed "as soon as the office has sufficient information to conclude that further investigation is not likely to result in a cause finding."12

Given the agency's limited resources and the small percentage of retaliation charges that result in cause findings, I would recommend the EEOC provide more detailed guidance to its field staff on Nassar and how to evaluate retaliation charges. Since employers routinely review the Compliance Manual for the EEOC's interpretation, such guidance would inform the employer community as well.

The Supreme Court in Nassar expressly rejected the EEOC Compliance Manual's current guidance on retaliation13> which directs a cause finding if there is direct evidence that retaliation was "a motive" for the adverse action, or if there is circumstantial evidence that retaliation "was the true reason" for the adverse action.14 The Compliance Manual also provides that an inference of retaliation is raised simply based on the adverse action taking place shortly after the protected activity, if the decision-maker was aware of the protected activity.

Therein lies a key problem: when the employee knows he / she is about to be terminated or other action taken, the employee can set up that temporal proximity, leaving the employer with no viable options. The employer can proceed with the planned termination or other action and face a retaliation charge, or keep a poor performer in place solely to avoid a retaliation charge.

The EEOC has recognized that it must modify its guidance on retaliation in light of Nassar.15 Consistent with the goals set forth in the SEP to standardize intake procedures and to target the agency's resources where they will have the broadest impact, I would encourage the EEOC to ensure that investigators are guided by the principles of Nassar.

Agency investigators should require evidence corroborating the employee's claim that but for the protected activity, the employee would not have been terminated. Among other things, the investigator should consider each of the following:

  • Did the employee actually engage in protected activity by making a complaint? If the employee did complain, was it verbally or in writing, and to whom was it made? What exactly did the employee complain about? Did the employee complain that he or she was being discriminated against based on a protected category? If the complaint was not in writing, were there witnesses to the employee making the complaint who have verified that the employee said what the employee claims to have said, when and to whom?
  • If the employee did complain to the employer, was the timing suspect? Was the employee aware of his / her performance deficiencies? If so, when did the employee become aware? Does the employer have any documentation supporting the performance issues? Was the employee's complaint a pre-emptive strike? Investigators should be particularly wary of relying on temporal proximity since, as the Supreme Court noted, an employee can time his or her complaint to create that proximity.
  • Did the employee give the employer an opportunity to investigate his or her complaint and take prompt corrective action? If the employee did not complain to the employer before filing a charge, why not?
  • Was the decision-maker in any adverse action aware of the employee's complaint at the time the decision was made? If so, was the decision-maker already contemplating adverse action prior to the time the employee complained? Do the witnesses or documents show that the employer was contemplating or had already decided to take the adverse action? Was the decision supported by a legitimate non-retaliatory reason? Were other employees who engaged in the same conduct or who had the same performance issues treated the same?

With thoughtful guidance and training, agency investigators can conserve the resources of the agency to pursue legitimate claims of discrimination. If employers are doing the right thing, investigators should be left with just one question: Can the employee show that his or her protected activity was the but-for reason for the adverse action? If not, the agency should issue a "no cause" finding promptly. Pursuant to the SEP, I would also encourage the agency to train investigators to regularly reconsider and re-evaluate retaliation charges on an ongoing basis and dismiss them as soon as it is apparent from the evidence the employee's protected activity was not the "but-for" cause of the employment action at issue.

The EEOC has also inquired as what employers are doing by way of best practices to avoid retaliation claims. Management attorneys routinely counsel their clients to do the following:

  • Have a policy prohibiting discrimination and retaliation, and mechanisms in place for employees to report their concerns.
  • Train supervisors on recognizing and responding to complaints of discrimination. If an employee makes a complaint, conduct an investigation. If the employer finds reason to believe that a supervisor or co-worker engaged in inappropriate conduct - even if it did not rise to the level of actionable discrimination - the employer should take prompt corrective action against the wrongdoer. The complaining employee should be encouraged to report to HR / senior management if he / she has any issues going forward, and management / HR should circle back to the employee after a time to ensure there are no issues.
  • After receiving a complaint, remind managers not to retaliate and remind them of the types of behavior that could be considered retaliatory.
  • Be consistent in responding to the same kind of misconduct, and if the handling is not consistent, ensure that the company can explain and has legitimate reasons for the difference.
  • Consistently document employee issues as they arise, along with steps taken to address those issues. An employer should not change practices with respect to a complaining employee by putting that employee under a microscope.
  • If the employer decides to take adverse action against an employee who has complained, the employer should consider whether the same action would have been taken had the employee not complained, and whether the same action was taken with respect to other employees who engaged in the same conduct.
  • Explain the non-retaliatory reasons for the adverse action against the employee.

  • Thank you for giving me the opportunity to share my thoughts.

Footnotes

1 EEOC Charge Statistics FY 1997- FY 2014, http://www.eeoc.gov/statistics/charge-statistics-charges-filed-eeoc-fy-1997-through-fy-2019

2 Univ. of Texas SW Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013).

3 John M. Husband, Steven T. Collis, and Dr. Ken Broda-Babml, Trying Retaliation and Discrimination Claims in Tandem - How Jurors React, http://www.americanbar.org/content/dam/aba/administrative/labor_law/meetings/2011/ac2011/039.pdf-44k-2014-03-04 ("Perhaps more important, however, is that, when faced with a choice, Jurors would believe the lower-level employee. The 2010 survey asked eligible jurors the following question, "If a lower level employee and an executive of the same company told differing stories about the same event, who would you tend to believe?" The responses indicated that 77% of eligible jurors would believe the employee, and only 23% would be inclined to believe the executive.") See also, Steven Gerber, Jurors' Pre-Conceived Attitudes: How They Impact Employment Litigation, The Federation of Defense and Corporate Counsel, www.thefederation.org/documents/P -GERBER.pdf (relying on juror attitude data from jury consultant Dan Gallipeau, Ph.D, President of Dispute Dynamics, Inc. of Torrance, CA).

4 David Sherwyn, Michael Heise, & Zev J. Eigen, Experimental Evidence that Retaliation Claims are Unlike Other Employment Discrimination Claims, 44 SETON HALL L. REV. 455, 485 (2014).

5 Id. at 499.

6 Id. at 483.

7 EEOC Charge Statistics FY 1997 - FY 2014, https://www.eeoc.gov/statistics/charge-statistics-charges-filed-eeoc-fy-1997-through-fy-2019

8Univ. of Texas SW Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2521 (2013).

9Univ. of Texas SW Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2532 (2013).

10 The Strategic Enforcement Plan, adopted in December 2012, established six national priorities: Eliminating Barriers in Recruitment and Hiring; Protecting Immigrant, Migrant and Other Vulnerable Workers; Addressing Emerging and Developing Issues; Enforcing Equal Pay Laws; Preserving Access to the Legal System; Preventing Harassment through Systemic Enforcement and Targeted Outreach.

11 Id. at 6.

12 Id.

13Univ. of Texas SW Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533-34 (2013).

14 Compliance Manual Section 8 on Retaliation, https://www.eeoc.gov/federal-sector/section-8-retaliation-eeoc-compliance-manual.

15 The first page of Section 8 of the Compliance Manual on Retaliation now includes the following legend: "In order to establish unlawful retaliation, a claimant must prove that the employer took an adverse action because of his or her opposition to unlawful discrimination or participation in a complaint, investigation, or lawsuit about discrimination. The Supreme Court's decision in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013), held that a Title VII retaliation claimant "must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer." This means that the claimant must show that the employer would not have taken the action "in the absence of" the claimant's protected activity. The Nassar Court rejected the EEOC's position that retaliation is a basis for employer liability whenever it is a motivating factor for an adverse action. Nassar also supplanted the EEOC's position that "[e]vidence as to any legitimate motive for the challenged action would be relevant only to relief, [but] not to liability." 1998 Compliance Manual Section 8 on Retaliation. Nassar had no effect on the Compliance Manual's discussion of what constitutes an adverse action for a retaliation claim, which the Supreme Court supported in Burlington N. & Santa Fe Rwy v. White, 548 U.S. 53 (2006)."