April 2013 Bar Bulletin
 
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April 2013 Bar Bulletin

Employee Retaliation Claims on the Rise

By Patrick Pearce

 

Statistics compiled by the EEOC confirm that retaliation claims are on the rise both nationally and in Washington. Nationally, for the 2012 fiscal year, retaliation charges constituted 38.1% of claims brought against employers - approximately 4% higher than in 2008.

The percentage is even higher for Washington. In 2012, EEOC retaliation charges brought by Washington employees made up 41.3% of all charges against employers - a 4% increase since 2009. Both in-state and nationally, retaliation charges were the most common EEOC claim asserted in 2012.

The elements required for a prima facie retaliation claim are functionally the same under federal and Washington law, and were recently restated in Lodis v. Corbis Holdings, Inc.1 To establish a claim: 1) the employee must have engaged in a statutorily protected activity; 2) the employer must take adverse action against that employee; and 3) there must be a causal link between engaging in the protected activity and the adverse employment action.2

Retaliation claims are most often brought as companion claims to other charges such as discrimination or harassment, but may be brought independently. At times, retaliation charges may develop when an initial workplace misconduct claim or complaint is brought, investigated and rejected by the employer, and the complaining worker is subsequently disciplined for an unrelated issue. In such circumstances, a worker may argue the discipline was in fact retaliation for bringing the rejected charge.

Several practices can help reduce the risk of retaliation claims. First, employers must be aware of both an employee's rights to engage in protected activity and what activities are protected. Supervisors and management considering disciplinary action should consult with HR or employment counsel to confirm whether an employee has or is engaging in a protected activity and whether that participation is implicated in the anticipated discipline. If a protected activity is potentially at issue, double check the motivations and basis for the possible adverse action.

Next, employers should be sensitive to timelines. The closer an adverse action against a worker is to the time the worker engaged or participated in a protected activity, the greater the risk the adverse action could be argued as retaliatory. This is not to say an employer should feel unable to take disciplinary action when and as warranted. Instead, the employer should be fully aware of risks and whether the timeline presents a potential issue.

Third, the employer should make sure to have clear supporting documentation. Good records and related communication with the worker regarding the underlying problem can help prevent a retaliation claim arising. If a claim does come, contemporaneous documents can be crucial in reaching a successful legal result. This consideration applies both for disciplinary actions and for decisions on non-disciplinary issues such as promotions or task assignments.

Finally, employers should strive for consistent treatment of workers whenever possible. Along with creating other potential issues, treating similar employees differently may create evidence for a retaliation claim. Ideally, an employer can establish that like workers were treated the same in similar circumstances.


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