Tag Archives: retaliation

Employers Win Retaliation Case in Supreme Court

supctThere were plenty of blockbuster decisions issued in the final week of the Supreme Court term that ended in June: Cases on affirmative action, voting rights, and of course same-sex marriage garnered most of the attention. But the Court also issued a couple of major employment decisions, which will have a significant effect on cases headed to trial.

In the first case, Vance v. Ball University, the Court limited the definition of “supervisor” in harassment cases to include only those who are authorized to take tangible employment actions (such as firing, demotion, promotion, or job reassignment) against employees. This case ¬†immediately changed the burdens of proof in harassment cases going to trial across the nation, making it more difficult for employees to hold their employers liable for hostile environment harassment. (You can find out why in my post about the decision, Big Win for Employers in Supreme Court Harassment Case.)

In the second case, University of Texas Southwestern Medical Center v. Nassar, the Court ruled that employees who claim that they were retaliated against for complaining about discrimination have a higher burden of proof than employees who only raise discrimination claims. Although the current Supreme Court is generally considered very favorable to business interests, this pro-business decision is something of a surprise. Employees haven’t had much luck in other types of cases, but they had an unbroken win streak in retaliation cases, until a few weeks ago. (Don’t believe me? See Another Supreme Court Win for Employees in Retaliation Case, Oral Complaints Trigger Retaliation Protection, and Supreme Court Issues Another Retaliation Decision, for starters.)

In the Nassar case, the Court had to decide who has to prove what in a “mixed motive” retaliation case. A little background: To win a Title VII discrimination case, an employee has to prove that the employer took action (typically, firing the employee) because of the employee’s race, religion, or other protected characteristic. In 1989, the Court had to decide how to handle cases in which the employer had discriminatory intent, but also had other, nondiscriminatory reasons for its decision. The Court came up with this rule for these mixed motive cases: If the employee can show that his or her protected characteristic was a motivating factor in the decision, the employer could escape liability if it could prove that it would have taken the same action absent any discriminatory motive.

Congress tweaked the mixed motive rule in the Civil Rights Act of 1991, in favor of employees. Congress reasoned that discrimination is always wrong, and should subject the employer to penalties even if the employer had other reasons for its actions. On the other hand, if the employer really would have taken the same action for legitimate reasons, the employee can’t prove any out-of-pocket losses. For example, if an employee claims that he was fired because of his race, but the employer says “we would have fired him on the same day because of his billing errors,” the employee can’t show that his lost wages were caused by discrimination. So, Congress refined the rule to hold that an employee who proves that discrimination was a motivating factor can be awarded attorney fees, costs, and declaratory relief (a finding by the court that the employer discriminated). However, if the employer can prove that it would have taken the same action for legitimate reasons, the court will not order money damages or reinstatement.

The Nassar case turned on a retaliation claim. Nassar, a doctor who worked at the hospital and was on the faculty at the University, claimed that a supervisor (Dr. Levine) harassed him based on his national origin and religion. Nassar complained to his immediate supervisor (Dr. Fitz) about the harassment, and also tried to arrange to leave the faculty while still working at the hospital (an arrangement not usually allowed). After the hospital indicated that it would hire him, Nassar quit his teaching position and wrote a letter to Fitz, stating that he had resigned because of the harassment. Fitz was angry about Nassar’s allegations, stating that he had “publicly humiliated” Levine, who should be “publicly exonerated.” He contacted the hospital and asked them to retract their job offer; he pointed out that the rules required all physicians at the hospital to also be faculty members. The hospital obliged, which led to Nassar’s retaliation claim and a very clear mixed motives case. The facts demonstrate both that Fitz had a retaliatory motive and that the same action would have been taken anyway, for other reasons. So, the Court of Appeals applied the mixed motive framework explained above.

The Supreme Court said that was incorrect. The Court decided that Congress’s mixed motive framework applies only to claims of discrimination, not claims of retaliation. In a retaliation case, the employee always has the burden of proof, and must show that the employer took action “because of” a retaliatory motive. If the employer would have taken the same action for other reasons, the employee loses.

Why did the employee winning streak end in retaliation cases? The majority decision states that it’s simply a matter of reading the statute. Congress laid out the mixed motive framework only for discrimination cases, not retaliation cases. As the dissent points out, however, the Court has recently allowed retaliation claims under statutes that don’t mention retaliation at all. And, because vindicating the right to work free of discrimination necessarily requires that employees not be penalized for coming forward with these claims, it’s odd to adopt different standards for these two allegations that are so closely linked. Perhaps the real reason is revealed when the majority opinion points out the huge rise in retaliation charges in recent years: Allowing employees to proceed under the easier burden of proof for mixed motive cases would “contribute to the filing of frivolous claims, which would siphon resources from efforts by employer, administrative agencies, and courts to combat workplace harassment.”

 

 

 

Confidentiality of Workplace Investigations

Workplace complaints and investigations can polarize a workplace. If your company has to investigate sexual harassment, bullying, or other serious problems, chances are good that employees will be talking about it and choosing sides. Of course, some of this is inevitable: We’re only human, right? But employers often try to minimize the fallout — in lost productivity, damaged reputations, or even changed stories and manufactured evidence — by requiring confidentiality. Employees who are interviewed as part of an investigation are routinely told that they may not discuss the investigation with other employees and may not reveal the facts they learn during the interview.

In the past few months, however, a couple of government agencies have cautioned employers not to go too far in trying to stop employee discussions. First, the National Labor Relations Board (NLRB) weighed in. In the case of Banner Estrella Medical Center, an HR consultant asked employees who had made a complaint not to discuss the matter with coworkers while the investigation was ongoing. The NLRB found that this request violated employees’ rights to discuss the terms and conditions of employment with each other. Prohibiting employee discussions of an ongoing investigation is allowed only if the employer can show that it has a legitimate business justification outweighing the employees’ rights. For example, if a witness needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or the employer needed to prevent a cover-up, the NLRB indicated that these facts could justify a confidentiality requirement. However, the requirement must be based on facts specific to the investigation, rather than a general, blanket approach to all investigations.

The Equal Employment Opportunity Commission (EEOC) has also questioned broad confidentiality requirements. As Lorene Schaefer reports in a blog post, the Buffalo, New York, office of the EEOC sent an employer a letter about its confidentiality policy. The EEOC stated that threatening to discipline or fire employees who discussed a sexual harassment complaint with anyone was illegal retaliation. Discussing harassment complaints with others is a form of “protected opposition” to illegal practices under Title VII. The letter also indicated that employees subject to such a confidentiality rule might believe they could be disciplined or fired for discussing harassment with the EEOC.

So what should employers do, in light of these opinions? It appears that blanket “gag orders” might create some risk going forward. However, a more limited confidentiality rule (for example, one that asks employees not to discuss what is said in the actual investigative interviews, as opposed to the underlying facts) could still pass muster. And, if you have specific concerns, based on the facts of the case, about falsification of evidence or witnesses talking to each other to “get their stories straight,” the NLRB opinion would still allow a confidentiality requirement. However, there are still a lot of grey areas here.

What’s more clear: Employers should do what they can on their end to maintain confidentiality. This includes, for example, revealing only the facts necessary to conduct a thorough interview. The accused employee must be told all of the allegations, but not every witness will need to hear the details. Employers should also take this as yet another cue to be speedy in conducting the investigation. The quicker a complaint is investigated and laid to rest, the less time there is for workplace chatter to do damage.