Three ways to protect your company from the new employee complaints and retaliation ruling

by on May 4, 2009 · 0 Comment POSTED IN: HR Info Center

Employee complaints of bias are now easier to prove

When lawyers say some area of employment law is “red hot,” it’s time for HR to put on the worry cap. That’s exactly how the legal eagles are talking in the wake of the Supreme Court’s latest decision on employee complaints and retaliation.

What’s more, in the few weeks since the decision – Crawford v. Metropolitan Gov’t of Nashville – courts around the country have already begun deciding retaliation cases in favor of employees that might well have gone the other way prior to Crawford. A little later on, we’ll discuss what you and your line managers need to do to lessen your chances of knuckling under to a retaliation lawsuit.

PROTECTING YOURSELF

Remember, Crawford follows three other pro-employee Supreme Court decisions on retaliation since 2006. Here are three suggestions for shielding your company from the growing wave of retaliation lawsuits:

  1. Have managers check with HR before every disciplinary action. They may not know an employee has recently taken part in an employee complaints investigation.
  2. Be even more wary of disciplining employees in the days and weeks after they’ve made a bias complaint.
  3. Make sure you have iron-clad documentation for each disciplinary action. You can still defeat any retaliation claim if you can prove the discipline was imposed for reasons having nothing to do with any discrimination complaint.

ANSWERED QUESTIONS

In the Crawford case, HR questioned an employee as part of an internal inquiry into employee complaints about the alleged sexual harassment of a colleague by a senior manager. She told an HR investigator that the alleged harasser had harassed her, too. After the investigation, the employer an accusation she strenuously denied.

She sued for retaliation. And eventually, she got the Supreme Court to agree that she had indeed engaged in conduct protected by Title VII – and thus had a legitimate retaliation claim – when she answered the HR person’s questions about harassment.

WIDENING THE POOL

This decision is hugely important, because it widens the pool of people who could sue you for retaliation. Not only are employees protected from retaliation when they make a formal employee complaints of harassment or discrimination to their employer or the EEOC, they’re also protected when they merely answer questions about these matters.

That’s because, the Supreme Court said, when they do so they’re “opposing” discrimination. And the Supreme Court’s expansion of “opposition” could go even farther, employment lawyers at the Littler Mendelsohn firm wrote. The Crawford case “leaves open the question of whether water cooler comments regarding discrimination constitute actionable opposition,” the lawyers said. In other words, an employee who grouses to a co-worker about alleged bias against himself or somebody else may have complained enough to be protected from retaliation!

LATEST CASES

That may sound alarmist. But look at a couple of cases that federal courts have used Crawford to decide since that ruling came down late in January.

  • In Michigan, a store employee’s husband, who worked for the same employer, was fired. She beefed to colleagues and a supervisor about it, but never filed formal employee complaints. The store later fired her for allegedly authorizing a fraudulent merchandise return. She sued for retaliation, and the court – citing Crawford – said she had a trialworthy case. Here’s the key quote from Crawford: “When an employee communicates to her employer a belief that the employer has engaged in … employment discrimination, that communication virtually always constitutes the employee’s opposition to that activity.”
  • In Kentucky, a hospital CEO questioned an employee in an inquiry into allegations by African- American staff that a dress code was being selectively enforced against them. The employee was later fired for insubordination, and she sued for retaliation. The court, referring to Crawford, said she engaged in protected activity by responding to the CEO’s questions.

Cite: Crawford v. Metro. Gov’t of Nashville, No. 06-1595, Sup. Ct.; Christian v. Wal-Mart, No. 07-14482, E.D. Mich; Singleton v. Select Speciality Hospital, No. 5:07-230, E.D. Ky.

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