Posted 05/22/2012 by Mike Loftin
It isn’t surprising that retaliation claims are increasing more rapidly than other types of employment discrimination claims. Virtually every statute forbidding discrimination in the workplace makes it unlawful to retaliate against an employee who complains of discrimination. Employees are protected from retaliation not only when they lodge formal or informal, written or unwritten, complaints of discrimination, but also when they support in some way complaints of discrimination lodged by co-workers.
By way of example, giving a statement to your employer which is consistent with an allegation of discrimination lodged by a co-worker would be supporting the co-worker’s claim of discrimination. Speaking up at a meeting with supervisory personnel to vouch for a co-worker’s claim of discrimination would likely be supporting the co-worker’s claim of discrimination. So bear in mind that potential retaliation claimants include not only those who lodge complaints of discrimination, but also those who support in some way complaints of discrimination lodged by co-workers. Another type of retaliation claim which is growing in popularity with trial lawyers who represent employees is a claim based on alleged retaliation against a whistle blower.
Every trial lawyer with significant experience representing employees knows that it is easier to convince a jury that an employer retaliated than it is to convince a jury that an employer unlawfully discriminated. Jurors understand that it is human nature to retaliate against a person who accuses you of wrongdoing. If you are innocent of wrongdoing, you are offended by the accusation and angry with your accuser. If, on the other hand, the accusation of wrongdoing is wholly or partially accurate, you may retaliate in the hope of preventing co-workers from supporting the accusation. Also, bear in mind that an employee can prevail on a retaliation claim without proving that his or her complaint of discrimination was well-founded.
So what common-sense measures can employers take to protect themselves? Here are a couple of suggestions. First, when an employee lodges a complaint of discrimination or makes a whistle blower report, the employer should inform only those supervisors who need to know of the complaint or report. To prove retaliation by a supervisor or manager, the employee has to show that the supervisor or manager who allegedly retaliated against the employee was aware of the complaint or report by the employee. Consequently, the first and best defense is that the supervisor or manager who allegedly retaliated wasn’t even aware of the complaint or report.
Second, when an employee has recently lodged a complaint of discrimination or made a whistle blower report, carefully review your documentation before disciplining or terminating the employee. If documentation developed before the complaint or report supports the decision to discipline or terminate, the employer must still be prepared to explain why the decision to discipline or terminate was made shortly after the complaint or report by the employee. If the documentation supporting the discipline or termination begins after the complaint or report by the employee, and is made by supervisors with knowledge of the complaint or report, then it will be difficult to convince a jury that retaliation didn’t play a role in the discipline or termination. Similarly, if there is no documentation of subpar performance before or after the decision to discipline or terminate, then the jury may be inclined to give credence to the employee’s claim of retaliation. Fear of a retaliation claim shouldn’t keep an employer from making appropriate decisions concerning its employees, but caution is warranted when an employer considers taking an adverse action against an employee who just recently lodged a complaint of discrimination or made a whistle blower report.
Finally, remember that a TWC telephone hearing is recorded and can be used by the employee’s lawyer to develop information to support a retaliation claim. The employee has no obligation to notify the employer before the hearing begins that he or she will be represented by counsel at the hearing. The employer’s witnesses will be testifying under oath and they will be subject to cross-examination under oath. If an employer has any reason to suspect that the former employee may be considering a retaliation claim, the employer should carefully consider whether to participate in a TWC telephone hearing. An employer’s decision not to contest a former employee’s claim for unemployment benefits is not admissible into evidence in a lawsuit brought by the employee alleging discrimination. On the other hand, testimony given by an employer’s representatives during a TWC telephone hearing can be used to impeach and discredit the representative when they offer testimony during the trial of the employee lawsuit.
Contact Mike Loftin at (806) 376-5613 for additional information or assistance.
This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.