Workplace Retaliation: The Employment Boomerang

On May 27th the U.S. Supreme Court recently issued two rulings that expand individuals' right to sue their employer for unlawful retaliation.

In the first case, an employee filed a lawsuit alleging that he was fired from his job because of his race and as an act of retaliation because he has complained to his employer about racial discrimination.  The Court held that under the Civil Rights Act of 1866 (yes, that's correct -- 1866) Section 1981 does prohibit retaliation even though that is not expressly stated in the statute. The law prohibits discrimination against employees based on race. Unlike Title VII of the Civil Rights Act of 1964, however, it does not expressly prohibit retaliation. CBOCS West, Inc. v. Humphries

What is the impact to employers if retaliation claims are already recognized under Title VII?  Section 1981:

• gives in individual up to four years to file a claim, unlike Title VII, which requires an individual to first file a charge within 300 or 180 days from the alleged action;
• has no limit on damages; and
• provides for a right of action against an individual supervisor or manager.

In the second case, Gomez-Perez v. Potter, a 45-year old postal worker filed alleged she was denied a transfer due to her age and as an act of retaliation after she filed a Postal Service EEO Complaint she was subjected to retaliatory behavior from coworkers and her supervisor. Here, the Court held that the Age Discrimination in Employment Act (ADEA) permits retaliation claims against public sector employers even though retaliation is not expressly prohibited in the statute addressing public sector employment (retaliation is expressly prohibited in the ADEA against private sector employees).  

Lessons Learned?  Ensure adverse employment actions (discharge, demotion, denial of a promotion, unsatisfactory performance appraisals) are reviewed within your company, such as by human resources, the business owner or legal counsel, before they are implemented.  Ask questions about recent activities and events to determine if the employee in question has recently engaged in behavior that could be legally protected.  If the answer is "Yes" you may decide to still proceed with your intended action but you will be better prepared to demonstrate that your action was unrelated to the protected activity and based, instead, on some type of unsatisfactory work performance. 

TIPS? Be sure your managers understand what behaviors can constitute unlawful retaliation, their potential for individual liability, and that they may create liability for the company should they engage in retaliatory behavior. But what conduct by a supervisor or the employer constitutes unlawful retaliation?  And what conduct by the employee constitutes "protected activity."  The definition of the former was expanded by the U.S. Supreme Court in 2006 when it held that adverse employment action need not be directly related to an employee's terms and conditions of employment and could include actions outside the workplace. The Court is also scheduled to decide in the next several weeks what constitutes "protected activity."  What to learn more?  Join this month's webcast by the same name, "Workplace Retaliation: The Employment Boomerang" on Wednesday, June 25th from 10:00 - 11:00 a.m. EST.  Each monthly webcast is pre-approved by HRCI for 1.0 Strategic credit hour.  

    Hot Hits!! Education Corner

Public Presentations

None Scheduled for June

NEXT WEBCAST!

Wednesday, June 25th, "Workplace Retaliation: The Employment Boomerang" 10:00-11:00 a.m. EST. Did you miss last month's or the 2007 series? They are archived and you can access them from the website as well!

All webcasts are pre-approved by HRCI for 1.0 Strategic credit!

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June's Client Training Programs

"Maintaining an Inclusive Workplace & Enhancing Workplace Communications"

"Coaching, Counseling & Correcting"

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VETS-100 Reporting Changes

On May 19th the U.S. Department of Labor issued a new and final rule that will modify the VETS-100 filing process for covered government contractors. All covered employers will still file the same report for 2008 but some will need to begin collecting modified data when the regulations go into effect on June 18th.  Beginning in 2009, some covered contractors will need to file a new VETS-100A report in lieu of or in addition to the regular VETS-100 report.  Some of the key provisions in the new regulations are:

• The new regulations and Form apply only to federal (sub)contracts entered into or modified on or after December 1, 2003 in the amount of $100,000 or more. If the only contracts you have were entered into before that date, you will continue to file the VETS-100 report by September 30th of each year.
• If you have contracts that were entered into before December 1, 2003 as well as one or more that were entered into or modified on or after that date, then you will need to submit both reports beginning in 2009: the VETS-100 and the VETS-100A. 
• The Protected Veterans categories for reporting using Form 100A have changed, so you will need to update your "Voluntary Self-Identification Form" and begin collecting employee data using the new categories effective June 18th.
• The language required in your contract clause has been modified and should be updated effective June 18th.

Spotlight

 Following presentation of a dual series of "HR and the Law for Managers" -- Level I and Level II, Susie O'Neill of Mid-Atlantic Federal Credit Union wrote, "Thank you Christine for providing current employment law scenarios. Our management team was able to gain valuable insight into new laws and legislation. Another great workshop!" Thanks Susie!  Looking for an engaging training program for your management team members?  Call FiveL Company today for a listing of programs and pricing.