Retaliation claims in the employment context are far too common and may be used by current or former employees to pressure or add a thorn to otherwise legal, prudent actions by employers. The Equal Employment Opportunity Commission (EEOC) publishes statistical data on retaliation charges going back to 1997. The statistics show that retaliation charges filed with the EEOC have more than doubled from 18,198 in 1997 to 37,955 in 2014.
Nationwide, retaliation claims in 2014 were included in over one-third of all charges filed with the EEOC. Closer to home, retaliation charges received by the EEOC in 2014 from Oregon residents made up 47.6 percent of all charges received from the state. That means almost half of the charges filed by persons in Oregon included a retaliation claim.
In part, the reason for the increase in retaliation claims comes from the relative ease of making these types of claims. To prevail in a retaliation claim, an employee needs to show: (1) that he or she engaged in a protected activity, (2) that he or she suffered an adverse employment action, and (3) that there is causal connection between the protected activity and the adverse action.
The third prong’s causal connection question is the proponent of much discourse and dispute. The question centers on whether an employee has to prove causation using a “but-for” standard, or a more lenient “substantial” or “motivating” standard. The trend, including that at the EEOC, was towards the latter, which allows employees to prove causation by showing that the claimed protected activity was a contributing factor for the adverse employment action rather than the “but-for” reason.
In 2013, the U.S. Supreme Court addressed the causation question in the context of Tile VII of the Civil Rights Act, which prohibits employers from discriminating against employees on the basis of race, color, religion, sex, or national origin. In its Univ. of Tex. Southwestern Med. Ctr. v. Nassar decision, the Court concluded that Title VII retaliation claims must be proved using but-for causation. The Court discussed the ever-increasing retaliation charges filed with the EEOC since 1997.
As was the case during the time of the decision, retaliation is second only to race as the most prevalent charge filed with the EEOC. Moreover, the Court specifically noted that using the lesser “motivating” standard could contribute to the filing of frivolous claims by employees attempting to set up their employers.
With that concept in mind, employees who see the writing on the wall of impending discharge or disciplinary action could be tempted to engage in unsupported protected activity such as complaining of harassment or improper billing practices prior to the adverse action, thereby chilling an employer’s otherwise legal action. Or, if disciplinary action did take place, employees could bring a retaliatory charge against the employer.
The Nassar decision brought a welcome sigh of relief to employers. If the EEOC statistics are any indication however, that does not mean that employers can lower their guard on this issue. As explained above, the Supreme Court addressed the causation question only in the context of Title VII. Accordingly, it does not apply to retaliation claims based on other federal or state laws. In Ellorin v. Applied Finishing, Inc., for example, the Federal District Court for Western Washington noted the decision in Nassar, but concluded that Washington had rejected the but-for standard in favor of the more lenient substantial factor standard for retaliation claims brought under the Washington Law Against Discrimination. Other jurisdictions have even expanded previously strict standards in favor of a lenient one. Just last year, the Missouri Supreme Court overruled decades of precedent by holding that a retaliatory discharge claim under Missouri’s workers’ compensation laws need be proved only using a contributory standard, not the previous exclusive reason standard.
So what is an employer to do?
Employers need to continue their focus on proper training and compliance. Supervisors and managers should be trained in identifying protected activity, including claims for harassment, discrimination, improper payment of wages, or workers’ compensation. Employers and their representatives must be trained to be objective and keep their emotions in check prior to taking adverse action against employees. During this time, emotions may run on overdrive and be overly sensitive for both employer and employee. Take notice of that possibility, be critical of your approach and act tactfully.
Best practice also includes keeping proper documentation of the situation before, during, and after any adverse action—all three are important. Proper documentation is the best way to prove a non-retaliatory reason for an action taken. Finally, have policies in place that reflect the company’s commitment to non-retaliation.
