Labor / Employment, On The Job

When It Comes To Workplace Retaliation, If You're The Boss, You Better Not Change Your Behavior At All

Retaliation is more deadly to employers because it is much easier to prove, and so easy (even inadvertently) to do.

By  
on

While I blog all the time about how to recognize, prevent, and remedy discrimination and harassment in the workplace, I have spent much less time discussing retaliation — which is more deadly to employers because it is much easier to prove, and so easy (even inadvertently) to do.

First, a new case which illustrates this, and then some background.

She Touched Him Inappropriately

A Baruch College-CUNY employee claimed that a co-worker “touched him inappropriately” — there were three episodes of such “unwanted contact” — plaintiff claimed that he was touched on the biceps three times, and on the shoulder blade twice.

He was ultimately fired after an internal investigation by the chief diversity officer found that the unwanted contact did not rise to the level of sexual misconduct.  Although the college claimed that he was fired because he was the subject of a “disciplinary meeting” and two unfavorable work performance evaluations, he alleged that it was in retaliation for his filing of the internal harassment complaint.  He sued.

So what happened?

It Was A Mere Casual Touching

Sponsored

The court held that there was no viable hostile work environment sexual harassment claim because “Plaintiff’s allegations constitute the type of ‘casual contact’ that the Second Circuit has said ‘would normally be unlikely to create a hostile environment in the absence of aggravating circumstances such as continued contact after an objection.’”

… So His Case Was Dismissed, Right?

Um, no.  His harassment claims were dismissed, but the court upheld his retaliation claim:

Plaintiff has pled sufficient facts to establish the first two elements of a retaliation claim: Plaintiff engaged in protected activity by making both informal and formal sexual harassment complaints … and Plaintiff claims that at least some of his co-workers and supervisors were aware of his complaints. … I find that Plaintiff has alleged facts sufficient to demonstrate a causal connection between his complaint and his termination. Approximately five months elapsed between the time Plaintiff made his complaint and the time he was terminated, a time period generally accepted as supporting an inference of causation at the motion to dismiss stage.

So What Does This Legalese Mean?

Sponsored

The underlying claim of hostile work environment — harassment — was dismissed as merely “casual contact,” but plaintiff’s claim that his termination was in retaliation for his making a hostile work environment claim internally was upheld — at least pending further proceedings.

And this does not bode well for the employer. Why?  Because retaliation is much easier to prove.

What Is Retaliation?

Title VII contains an anti-retaliation provision, which, as my partner Amy Epstein Gluck wrote some time ago, makes it unlawful for an employer to subject an employee to an adverse action when that employee has opposed any practice which is an unlawful employment practice under Title VII.

“Once an employee complains about discrimination to HR, if the employer terminates the employee, the employer can be held liable for retaliating against the employee for complaining about discrimination.  The EEOC considers ‘opposition’ to be complaining to anyone about alleged discrimination suffered by oneself OR others!”

Other such statutes also contain anti-retaliation provisions: for example, the Age Discrimination in Employment Act (“ADEA”), the Americans with Disabilities Act (“ADA”), Section 501 of the Rehabilitation Act, the Equal Pay Act (“EPA”), and the Genetic Information Nondiscrimination Act (“GINA”).

The Elements Of Retaliation

To make out a claim for retaliation, it must be shown that (1) plaintiff was engaged in a “statutorily protected activity” by opposing an employment practice that she has a good faith, reasonable basis to believe is unlawful; (2) an “adverse employment action” was taken by the employer; and (3) there is some causal connection between the two.

What Is An “Adverse Employment Action”?

The second element — “adverse employment action” — is, surprisingly, a major issue in employment discrimination law.  Exactly what is an adverse employment action?  We know that termination is clearly an adverse action, as is demotion, transfer, ignoring or yelling at an employee, taking away work or responsibility, or giving too much work.

But how minimal can an act be and still be deemed to be “adverse”?  Can even a scowl or frown from the boss be considered an adverse act?  This is not merely an academic question since an employee who alleges or files a discrimination claim or complaint is protected from — even insulated against — retaliation, a claim which is way easier to prove than the underlying claim of discrimination.

Well, it turns out that virtually any employment action has the potential of being deemed — or at least argued to be — retaliatory.

Take a relatively recent decision from another federal court in NYC.  To cut to the retaliatory chase, a pro se plaintiff (given the requisite leeway by the court) had his discrimination claim under the ADA dismissed, but the court upheld the sufficiency of his retaliation claim.

“He Stopped Saying Good Morning!”

Noting that in an ADA case, an adverse employment action should be construed as “an action that ‘could well dissuade a reasonable worker from making or supporting a charge of discrimination,’” the court summed up plaintiff’s proffered evidence of what he considered adverse actions that were taken against him:

  1. One boss “stopped saying good morning” to him, and a second boss “totally change[d]” in the way he spoke to him; and spoke to him without a “warm welcome in his voice”;
  2. The second boss “continually monitored him at work,” and asked him about two instances in which he incurred overtime without prior approval; and
  3. Both bosses “talked to him like he was a criminal.”

There was no “warm welcome in his voice”?  That’s about it. Not much is needed to show an adverse action.

Although the employer argued that these alleged acts were “petty slights or trivial inconveniences” — which seem true — the court nonetheless held that while it was “a close question,” there was a genuine issue of disputed fact requiring a trial.

Takeaway

Whew!  It turns out that even a scowl may be deemed adverse. 

An employer’s best practice is to take a “business as usual” approach: treat the employee as if no complaint had been filed, i.e., like any other employee; communicate openly and in a non-intimidating manner with the employee; and — as always — document, document, document all decisions.

And, oh yes — don’t forget to say “good morning!”  With a smile, of course!

richard-b-cohenRichard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at [email protected] and follow him on Twitter at @richard09535496.

Topics

, , ,