Retaliation

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Did you know that at the beginning of 2016, the EEOC rolled out Phase I of its Digital Charge System, which provides an online portal system for employers to access and respond to a Charge of Discrimination? If you didn’t know, you are not alone. Many employers have been surprised to receive an email from the EEOC stating that a Charge has been filed and providing a password to access the EEOC’s secure online portal. The email provides a deadline for the employer to log in to the portal. Once logged in, the employer may view and download the Charge, respond to mediation requests and upload position statements it creates for the EEOC to review. (The EEOC asserts that information uploaded to the portal are encrypted and protected by proper security controls.) The EEOC’s plan is to no longer send hard copies of these documents to employers.

On April 1, 2016, new regulations from California’s Fair Employment and Housing Council will go in effect. These new regulations state that “[e]mployers have an affirmative duty to create a workplace environment that is free from employment practices prohibited by the Act,” and require changes in employment policies. As a result, employers should carefully review their existing policies to ensure compliance with these new standards and act quickly to make any needed changes before April 1.

As HR professionals, we often think about how to prevent domestic violence from spilling over into workplace violence, through the use of workplace violence policies, domestic violence response teams, and “no guns in the workplace” policies.

You may not, however, have given much thought as to how to prevent discrimination and retaliation against victims of domestic violence who are employed by your company, or who have sought employment with your company.  This issue is crucially important to victims of domestic violence; when they lose their jobs, or fail to obtain employment, they lose the ability to be economically independent, and oftentimes then remain controlled by their abuser.  This issue is also critically important to employers, who may inadvertently subject themselves to liability if they are not aware of the federal, state, and local laws that protect the victims of domestic violence from discrimination and retaliation.

In several prior posts, we have highlighted the growth of retaliation actions, including retaliation under Title VII and the FMLA.  We have also provided suggestions for minimizing the likelihood of your company being found liable for retaliation.

There are many other statutes that also provide employees with protection from retaliation for bringing a claim.  In particular, the trend in recent years has been for statutes containing whistleblower provisions to couple those whistleblower provisions with retaliation provisions.  This provides employees with further confidence and assurance that it will be “worth it” for them to come forward—either to their employer or to the government—with information concerning a violation of the statute.

The number of retaliation claims filed with the EEOC has been steadily rising.  Is there more retaliation in the working world?  More likely some of the rise is due to better knowledge of various employment laws’ anti-retaliation provisions and greater enforcement of those provisions, including more lawyers bringing retaliation claims that end in sizable verdicts.

Can you terminate an employee for participating in an internal investigation at your company that is not connected with a formal EEOC proceeding?

Recently, in Townsend v. Benjamin Enterprises, Inc., the Second Circuit joined five other federal appellate courts in answering this question with a “yes.”  The Court held that participation in an internal employer investigation not connected with a formal EEOC proceeding is not protected activity under the participation clause contained in Title VII.  So, an employee participating in an internal investigation is not protected from being terminated in retaliation for such participation.  However, even if such a termination is not unlawful, it is still not a wise or productive decision for any company.

A previous post discussed a huge jury verdict for an employee who was harassed and mistreated at work due to her religion.  The lesson:  harassing an employee, subjecting her to a hostile work environment, and retaliating against her for complaining about harassment are all wrong, illegal and expensive.

A decision handed down yesterday by the federal appeals Court covering Georgia, Alabama and Florida has made that point again.  In doing so, it further explained that retaliating by creating a hostile work environment for employees who complain about discrimination also violates Title VII — and is also wrong, illegal and expensive.