March 2009 - Retaliation: Taking Revenge Against Employees is Not So Sweet

DUFF, WHITE & TURNER, L.L.C.
Attorneys And Counselors At Law

Retaliation: Taking Revenge Against Employees is Not So Sweet

When a school district employee complains about a coworker's or supervisor's conduct or practices, the allegations can create tensions or hard feelings. From a legal perspective, however, there could be bigger issues. As a result of the complaint, the employee may be perceived as a "problem," and coworkers and/or the supervisor may treat the employee differently or take some action against the employee that is perceived as negative by the employee. Taking adverse action against a complaining employee, such as issuing reprimands or changing working conditions, because he or she filed a complaint, is considered to be retaliation and can be unlawful. In increasing numbers, employees are filing retaliation complaints with state and federal agencies that investigate retaliation claims. Employers who are found to have engaged in unlawful retaliation may be sued by the investigating agency or the employee, and may be required to compensate the employee for monetary damages, attorneys' fees and other costs associated with a lawsuit.

Various state and federal laws prohibit retaliation by employers, including school districts, in response to an employee's "protected activity." Employees are engaging in protected activity when they exercise certain legal rights, such as requesting a disability accommodation, objecting to employment discrimination, taking leave under the Family Medical Leave Act, filing a workers' compensation claim, or seeking overtime pay. Employees also engage in protected activity when they participate in another employee's efforts to exercise those legal rights. For example, an employee may give a statement in support of a coworker who has complained of sexual harassment or may answer questions during an interview by a district official investigating a coworker's complaints. An employee also may object to school district policies or practices that affect other people, such as with regard to equitable athletic opportunities for female students. In these situations, the employee's conduct is protected and the district has an obligation to ensure that the employee is not retaliated against because of the protected activity.

In recent years, U.S. Supreme Court rulings have made it easier for employees to prevail on retaliation claims. To prove that retaliation occurred, an employee must show that the employer's alleged negative action was taken as a result of the protected activity and that the employer's action likely would discourage a reasonable employee from engaging in that protected activity. Whether an employee would be deterred from doing so depends upon the context in which the adverse action occurred. For example, changing an employee's work schedule may not be considered negative by some employees; the action could result in negative consequences for others, however, such as increased child care costs. Likewise, a supervisor's failure to include an employee in a social activity would not generally be considered an adverse employment action, but if all employees were invited except the one who had made a complaint, retaliation may be found.

Though employees are filing and prevailing in retaliation suits more often than in years past, employers are not prohibited from taking adverse employment actions merely because an employee has engaged in protected activity. If the actions taken by an employer are based on a legitimate, nondiscriminatory reason (such as insubordination or failure to carry out job duties), then the employer's actions will not be considered retaliatory unless the employee can show that the employer was motivated to take the action because the employee engaged in protected activity. Retaliation could be found, for example, if an employee who files a discrimination complaint is reprimanded for violating a work rule that had not previously been enforced against other employees, particularly if the discipline was imposed soon after the complaint was filed.

Districts should be aware that employees can prevail on retaliation claims even if the complaint that preceded the adverse action is determined to be unfounded. For example, the state or federal agency that investigates an employment discrimination claim may ultimately dismiss the claim because of insufficient evidence that discrimination occurred. If district officials retaliated against the employee while the complaint was being investigated, however, the employee could then file a retaliation charge with the agency and potentially prevail on that charge.

To ensure that employees who engage in protected activity are not subject to retaliation, districts should have policies in place that prohibit unlawful retaliation and direct employees to promptly report any perceived retaliation. To prevent retaliation, school districts should train administrators and supervisors to be aware of their anti-retaliation obligations under state and federal laws, including informing them of actions that may be considered retaliatory. When adverse action against an employee is taken, administrators and supervisors should accurately record the legitimate, nondiscriminatory reasons for the action and share those reasons with the affected employee. This practice is a good rule of thumb in all cases where adverse action is taken against an employee, even where the employee has not made a prior complaint of any kind. Likewise, work rules should be applied in a fair and consistent manner so that similarly situated employees are treated in the same way. Preventing the possible perception that an employee was singled out for adverse employment action is desirable even in cases where the employee has not engaged in a protected activity.

If an employee makes a complaint, whether informally or through a government agency, the employee and any participants involved in the investigation into the complaint should be advised that retaliation against them is prohibited and that, if they believe they have been retaliated against, they should promptly report it. All retaliation complaints should be promptly and thoroughly investigated, and appropriate corrective action should be taken when warranted. Employee complaints and resulting investigations also should be kept as confidential as possible in order to limit the individuals who have knowledge of the complaint.

If you have questions about retaliation discrimination in the workplace, please do not hesitate to contact us. We are available to assist with development of, or revisions to, board policies and procedural guidelines on complaints and retaliation, as well as with related training of administrative/supervisory staff.