Sunday, April 5, 2009

How can I retaliate? Let me count the ways!

As I indicated in my previous post, I've heard personal stories about many retaliatory actions against employees who dared to complain about discrimination. Most of them were less severe than "ultimate adverse employment actions," but nevertheless, extremely effective! The employer/supervisor writes negative evaluations, initiates surveillance on an employee, transfers employee to an undesirable job site, works with the union behind the employee's back, installs time clocks, threatens to counter sue, refuses leave requests, refuses to follow contractual grievance procedures, assigns permanent night-shift, ignores negotiated seniority rights, reassigns work space, cuts budget allocations, harasses or embarrasses employee in front of peers, refuses to return calls or emails in a timely manner, skips customary annual bonus, writes or gives negative recommendations to potential employers, withholds support of initiatives - the list is endless. It's limited only by the employer's imagination. Of course, any of the actions listed above may or may not be retaliatory in the legal, actionable sense of the term. It depends on the particular circumstances and how other comparable employees were treated. But the point is - beware! Retaliatory actions are most often subtle, covert, and insidious - which also makes them very difficult to prove - and very effective!

Chilling, isn't it?

Retaliation's Chilling Effects

Since publishing Plaintiff Blues: Job Discrimination and the Chilling Effects of Retaliation in 2007 and posting this blog, I've received numerous phone calls and emails from folks about discrimination and retaliation.The majority of these communications involve personal stories of discrimination and retaliation. These stories contained disturbing, common patterns.

"I didn't file a complaint because I'm afraid of retaliation," was the most frequent comment I received. This fear is the single most chilling effect of retaliation. It also answers the most common question asked about discrimination/retaliation in the workplace, "How can they get away with it?"

The EEOC manual on Retaliation reads, "Effective enforcement of the anti-discrimination statutes depends in large part on the initiative of individuals to oppose employment practices that they reasonably believe to be unlawful and to file charges of discrimination. If retaliation for such activities were permitted to go unremedied, it would have a chilling effect upon the willingness of individuals to speak out against employment discrimination."

So our state and federal governments have passed laws against job discrimination. But enforcement of these laws requires individuals to step up and file charges against their employer. To do so, employees risk retaliation. Any doubt why retaliation reigns as the number one defensive strategy of employers accused of discrimination?

Although protections against retaliation are included in most of the anti-discrimination statues and have been strengthened by recent Supreme Court decisions, for years most lower courts used very restrictive definitions of retaliation. These definitions or standards insisted that the challenged, retaliatory employer action qualify as an ultimate, adverse employment action such as hiring, firing, promoting, and compensating.

In the 2006 Burlington Northern v White decision, the Supreme Court broadened the protections to include less severe retaliatory actions. In this case the Court said that retaliation included employment actions that would have, "dissuaded a reasonable worker from making or supporting a charge of discrimination."

Yes, this is not a very precise standard or definition of what constitutes retaliation. However, any challenged act of retaliation depends on the particular circumstances. Context matters. For example, a simple schedule change may not matter to most workers, but may make a huge difference to a mother with school age children. A supervisor's excluding an employee from lunch may be just a trivial, nonactionable, and petty slight. But if that were a weekly training lunch that contributes to the employee's professional advancement, it may be an action that would deter a reasonable employee from complaining or supporting a complaint of discrimination.

Another pattern emerged from the contacts I've had. Several said they had filed the initial complaint but dropped it because they found themselves standing alone. Their co-workers were unwilling to support them or testify on their behalf because they were also afraid of retaliation. Another said, "I could have handled it myself, but I didn't want to put others - peers, co-workers, friends - in the bull's eye." Many said they knew what to expect if they complained about discrimination or retaliation because they had seen the treatment others got and wanted no part of it.

It's important to note that the same protections from retaliation that apply to the original complaining party also apply to anyone to participates in the investigation. However, those participants would have to stand up one additional time to initiate their own complaint if they experienced retaliatory actions.

Chilling, isn't it?