LOOK FOR MORE RETALIATION CLAIMS!

In the much-anticipated U.S. Supreme Court opinion Burlington, N. & S. F. R. Co. v. White (http://supremecourtus.gov/
opinions/05pdf/05-259.pdf), the high court ruled unanimously that the anti-retaliation provision of the Civil Rights Act does not confine forbidden actions and harms to those that are related to employment or occur in the workplace. What matters is if the employer’s actions are harmful to the point that they could dissuade a reasonable worker from making or supporting a charge of discrimination.

The decision referred to the EEOC Retaliation Compliance Manual (www.eeoc.gov/policy/docs/retal.html), which sets these criteria for a retaliation claim:

• Was there protected activity?
• Was the claimant subject to adverse treatment reasonably likely to deter protected activity?
• Was there a direct or circumstantial clausal connection between the adverse action and the underlying charge?

The manual — a must read for every HR professional — discusses each of these criteria in detail. For example, under “adverse treatment” it gives such examples as: Denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, discharge, threats, reprimands, harassment, negative evaluations, negative job reference, and keeping an employee under surveillance. Common, non-retaliatory employer reasons include: Poor job performance, inadequate qualifications, violation of work rules, or insubordination. Even if an employer produces evidence of a legitimate, non-discriminatory reason for the challenged action, this explanation can still be deemed a pretext for underlying retaliation.
 

RETALIATION LITIGATION:
FOREWARNED IS FOREARMED

Look for the Burlington decision to generate a deluge of marginal discrimination and harassment retaliation claims, adding to a judicial system already overburdened with litigation triggered by managers who can’t control themselves, ready-made “victims,” and plaintiff lawyers.

To help protect yourself in this adverse environment, we’d recommend that you take these 12 steps:

1. Send a statement from the top that discrimination, harassment, and retaliation will not be tolerated — no exceptions.
2. Publish this standard widely and provide both supervisor and employee training.
3. Take all rumors and claims seriously. Conduct a prompt and thorough investigation, using expert help if necessary.
4. Once a claim is filed, try to keep the employee relationship from souring through an undermining of trust, less dialogue about career opportunity, micro-management of performance, etc. Acknowledge this reality up front, counsel all parties about it, and seek to rebuild trust in the relationship.
5. Provide alternative reporting channels. You might want to assign an ombudsman who the employee feels “safe” in reporting to.
6. Make sure that your policies are adhered to uniformly and that all employees are treated equally under equal circumstances.
7. Keep your investigation, finding, and disciplinary action limited to a “need to know” basis.
8. If in fact an employee is damaged, don’t wait for a judge or jury to demand a remedy. If they need time off, medical attention, or any other support then pay for it.
9. If you’re dealing with an employee who has made a claim, consult with employment law counsel before taking any type of adverse employment action.
10. Consider using a third-party mediator to help bring the parties closer.
11. Make sure to document poor performance.
12. Finally, be sure to use an Employee Compliance Survey, in which the employee acknowledges that they have the opportunity to complain and are required to report inappropriate conduct, and asks if they have suffered any such conduct. The employer and employee sign this document under penalty of perjury twice a year.
     

STATE ANTI-DISCRIMINATION LAWS: VARIATIONS ON A THEME

Many states have legislated beyond the Federal Equal Opportunity Laws. For example, they protect sexual orientation, use of lawful products, marital status, and expansive definitions of covered disabilities.

If you have employees in more than one state, how can you deal with these distinctions? Should you treat all employees according to the highest common denominator? For example, if sexual orientation is protected in California, but not in Texas, should the handbook you provide your Texas employees reflect this distinction? We’d recommend these guidelines:

• Be careful of what you commit to. As the saying goes, “no good deed is left unpunished.” For example, if your company offers protection against discrimination based on sexual orientation where the law does not require you to do so, failure to live up this obligation could create an additional legal exposure.
• Consider treatingyour employees better than the law requires. Consider whether your internal branding or corporate culture promotes “something extra.” Remember, the law is only a bottom-line requirement. Many of today’s laws are based on policies adopted by proactive employers long before legislation required them to do so.
• Remember that you can legislate or mandate tolerance, but not acceptance. The basic requirement of EEO law is to do no harm to another because they’re different from you. The law has a difficult time when it tries to move beyond tolerance and require acceptance of our differences. Although acceptance might be a lofty corporate or social goal, it’s difficult to enforce by policy or legislation — but can only come through awareness that requires particular training.
• Finally, whatever the protection, the message has to come from the top. Leadership must either mold a corporate culture or it becomes shapeless. If you want to enforce tolerance and encourage acceptance, the message has to come from top management. Delegating this responsibility is both irresponsible and ineffective. At best, you can delegate its implementation.

To access your state Labor Office go to www.dol.gov/esa/contacts/state_of.htm
 

“Most people just get up and go to work. I get up and go to work to get something done. Finished. Completed. Off my desk. Out the door.”

Dan Kennedy
Prolific Marketing Expert

This issue discusses:

• Editor’s Column: Learn from the Experts
• Fringe Benefits = Big Bucks
• Look for More Retaliation Claims!
• Retaliation Litigation: Forewarned Is Forearmed
• State Anti-Discrimination Laws: Variations on a Theme
• Expanding the Scope of Gender Discrimination
• Cubicle, Sweet Cubicle?

We've also provided hyperlinks to the Form of the Month.
 

FRINGE BENEFITS = BIG BUCKS

According to the Bureau of Labor Statistics, fringe benefits account for nearly 30% of payroll costs. These extra payments (including Social Security, Unemployment insurance, and Health insurance) add an average of $8 an hour to the compensation of a full-time worker, bringing total wages plus fringe benefits to more than $28 per hour. Fringe benefits add even more ($13 an hour) to managerial and financial jobs. Unfortunately, many employees don’t understand the full cost to their employers. That’s why we encourage you to look at this month’s Form of the Month: The Total Compensation Statement.
 

EXPANDING THE SCOPE OF GENDER DISCRIMINATION

The federal Ninth Circuit court is known to be the most pro-employee circuit in the nation. In a case decided last year, EEOC v. National Education Association (No. 04-35029) the court ruled that the “reasonable woman” standard applies to workplace abuse of conduct, even if there is no sexual content to the behavior.

To make a long story short, a male interim boss at the National Education Association (NEA) was abusive to both men and women. The women argued that he was abusive to them more frequently and that their sensibilities to it were greater than the men. Again, none of the women claimed his conduct was sexual in nature. This decision expands current laws by focusing on how gender neutral, if undesirable, conduct affects women differently. As stated by the court, “This case illustrates an alternative, motivational theory in which an abusive bully takes advantage of a traditionally female workplace because he is more comfortable bullying women than when bullying men.” Given this logic, you could substitute the word “he” for “she,” if a woman boss were more comfortable bullying women than men.

Note that this case is only binding in the Ninth Circuit states: California, Oregon, Washington, Nevada, and Alaska. Since the employment law revolution has migrated from west to east, don’t be surprised if you face this expanded liability soon. The point: Don’t allow disrespectful conduct in the workplace whether it’s illegal or not.
 

CUBICLE, SWEET CUBICLE?

The Job Accommodation Network provides helpful guidelines on managing employees with cognitive impairments who might experience a variety of difficulties when performing job duties in a cubicle environment. These impairments can be either temporary or permanent and might affect overall performance, quality of work, conduct, and productivity. To learn more, go to www.jan.wvu.edu/corner/
vol03iss06.htm.
 

FORM OF THE MONTH:

(Excel) (Word)

Few employees understand the full cost of their employment. Use this with individual employees or create a “generic” one for somebody earning $50,000 to help employees better understand and appreciate employer contributions and other overhead concerns.