Don’t Retaliate

Posted by Kenneth N. Winkler on

In 1974, in the first inning of the opening day game against the Cincinnati Reds, Pittsburgh Pirate pitcher Dock Ellis hit 3 Red’s batters (Pete Rose, Joe Morgan, and Danny Driessen) in a row.  Ellis walked the next batter (Tony Perez) after he unsuccessfully tried to hit him as well.  Ellis was finally tossed from the game after he tried to bean Hall of Fame catcher Johnny Bench -twice.   Why did he do this?  Ellis thought the Reds were too cocky.  Also, two years earlier Ellis was maced by a security guard at Cincinnati’s Riverfront Stadium who wouldn’t let Ellis into the Pirates clubhouse.  Ellis took the approach that “retaliation is a dish best served cold.”  Typically, acts of retaliation in baseball and other sports are more spontaneous, such as the bean ball following a home run, the charge to the mound after taking one on the arm, or an illegal hit on the football field following some smack talk by an opposing player.  This is because retaliatory acts are often based on emotion with little appreciation for the ramifications.

In the workplace, retaliation can be big trouble — much more than a 15 yard penalty or early exit to the clubhouse.  For the first time ever, retaliation under all of the statutes enforced by the EEOC surpassed race discrimination as the most frequently filed charge of discrimination. Race discrimination had been the most frequently filed charge since the EEOC became operational in 1965.

Retaliation includes any adverse action taken against an employee for filing a complaint or supporting another employee’s complaint under a variety of laws.  The most common type of retaliation claim involves an employee who alleges that she was first harassed or discriminated against and later punished for making a complaint about the harassment to her employer.   But retaliation claims frequently stem from other types of protected activity.  For example, the EEOC settled a retaliation lawsuit against a Portland-based seafood processor and distributor in a case where the EEOC alleged that the company illegally fired a warehouse worker after he spoke to management about racial discrimination.  When the employee told his supervisor that he feared he had received a smaller raise than his non-Hispanic co-worker because of his race, he was told that if he was going to accuse the company of discrimination, they “should part ways.”  The employee’s final paycheck was issued that day.

Retaliation claims may be on the rise because an employee can assert a meritorious retaliation claim even though the company prevails on the underlying discrimination claim.  It is not uncommon for companies to get into trouble because an employee said or did things to the complainant after they were accused of misconduct, which could be construed as retaliatory.   This is understandable as it is human nature for people to defend themselves when they are accused of something.  But taking any adverse action against an employee who engaged in protected activity can be dangerous.

Decisions by the US Supreme Court show a trend of expanding protection to employees against retaliation.  In Crawford v. Metropolitan Government of Nashville & Davidson County (2009), the Supreme Court held that the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964 apply to employees who voluntarily cooperate with an employer’s internal investigations, even if the employee did not initiate the investigation and has filed no formal charge of discrimination.  More recently, in Thompson v. North American Stainless, LP, No. 09-291 (1-24-11), the Supreme Court ruled that an employee who was fired shortly after his fiancée filed a charge with the EEOC can sue under Title VII of the Civil Rights Act for third-party retaliation.

Against this backdrop, employers need to take proactive steps to avoid being subjected to a retaliation claim.  Below are some practical tips to guide you.
  • Review harassment/discrimination policies to ensure that they expressly prohibit retaliation.
  • Do not limit the prohibition against retaliation to sexual harassment, but bar retaliation against all forms of discrimination and harassment.
  • Whenever an employee is alleged to have engaged in harassment or discrimination, the employee should be warned not to take any adverse action against the employee who lodged the complaint.
  • Advise anyone who lodges a complaint to notify management if they believe that they are being retaliated against.
  • Educate supervisors and employees about what retaliation is and explain what conduct is prohibited.  Include retaliation as a topic in any harassment training.
  • Make sure that any discipline issued to an employee who has lodged a complaint about discrimination is justified and can be supported.