While retaliation claims in employment matters were initially just tacked onto underlying discrimination claims, they are often the more challenging claims to overcome. The Society for Human Resource Management reported that 2010 marked the first year in which employees filed more retaliation claims with the EEOC than race discrimination claims.
These claims can be more difficult to defeat on a summary judgment motion, which thereby increases the defense costs and the settlement value of an employment claim that also alleges retaliation. The change began after the U.S. Supreme Court lowered the burden of proof for plaintiffs in its 2006 opinion in Burlington Northern v. White. The Court held that the anti-retaliation provision of Title VII of the Civil Rights Act of 1964 merely requires the aggrieved employee to prove the employer did something that would dissuade a reasonable worker from seeking a remedy for discrimination in the workplace. Subsequent Supreme Court opinions have further lowered the bar for employees to assert and maintain retaliation claims, including a 2009 holding that retaliation claims need not be presented in writing.
These changes in the law suggest several policies employers should implement, or stringently enforce if such policies are already in place. Borrowing from the axiom that the three most important things in real estate are “location, location and location,” we advise our clients that the three most important things in HR are “documentation, documentation and documentation.” Any complaint of discrimination should be taken very seriously (more on this in future posts) and the investigation should be thoroughly documented. The initial interview and any follow-up meetings with the employee presenting the complaint should include a request that the employee notify HR if the employee believes he or she is the subject of retaliation. The file should include a notation that HR presented this request. Regardless of what results from the employee’s initial complaint (even including a formal Charge of Discrimination with the EEOC of a state counterpart), make a point of calendaring a date for follow-up with the employee on regular intervals over the ensuing months, to specifically ask if he or she has experienced anything regarded as discrimination. These inquiries, too, should be documented in the personnel file.