THE MAGAZINE

Preventing Harassment

By John M. Bagyi and Matthew G. Boyd

Retaliation Claims

In addition to harassment claims, employers often face charges of retaliation for their treatment of employees who complain of harassment. Retaliation claims have steadily increased over the past few years, due in large part to the continual evolution of this area of law. Since 1992, the number of retaliation claims has doubled (racial is first).

Retaliation is technically not harassment; it falls under the broader legal category of discrimination. Discrimination charges in 2007 totaled 82,792; of those, 30,510 were for racial discrimination; 26,663 were for retaliation; and 24,826 were for sexual discrimination. (It should be noted that not all sex discrimination is considered harassment, so within discrimination’s subcategory of harassment, which is the primary focus of this article, sexual harassment charges are, as noted, about 16,000.)

Retaliation is prohibited under federal and state laws. While it has always been clear that an employer may not discharge, demote, or deny a promotion to a person based on protected activity, such as filing a harassment complaint, it was less clear whether an employer could retaliate by taking lesser employer actions, such as assigning less favorable job duties. In 2006, the U.S. Supreme Court clarified this issue and in doing so opened the door to a significant increase in retaliation claims.

In the case, Burlington Northern and Santa Fe Railway Company v. White, the Court held that a plaintiff alleging retaliation under Title VII of the Civil Rights Act may state a formal claim even if the alleged retaliatory action did not affect the terms and conditions of the plaintiff's employment. Under Burlington Northern, retaliation is no longer limited to actions that affect terms and conditions of employment or are workplace related. As a result of that decision, employers may now be held liable for retaliation if they modify an employee’s duties or for actions outside the employment context, such as filing a criminal complaint against the employee.

An employee only has to show that the employer’s retaliation was serious enough that it would have dissuaded a reasonable employee from ever making a complaint. This decision made it easier to file retaliation claims, and plaintiffs’ attorneys took notice.

The Burlington Northern decision not only increased the number of retaliation claims, but it also changed the outcome in cases that were under consideration when that decision came down. For instance, in Kessler v. Westchester City Department of Social Services (U.S. Court of Appeals for the Second Circuit, 2006), Kessler was the assistant commissioner of social services for the city; he worked in the main office, supervised approximately 100 employees, and had departmentwide responsibilities, including negotiating contracts and developing programs.

After Kessler filed an initial agency charge alleging race, gender, religion, and age discrimination, he was transferred to an outlying office where he had no supervisory or departmental responsibilities. He was assigned menial tasks. Nonetheless, his title, job grade, salary, benefits, and hours remained the same.

The case was initially dismissed because the plaintiff failed to show that he suffered an adverse employment action, as he did not suffer any loss of title, wages, or benefits. On appeal, the appellate court, relying on Burlington Northern, reversed the decision, concluding that the transfer prevented the employee from performing broad discretionary and managerial functions, removed employees that reported to him, and forced the employee to do work normally performed by clerical personnel. The court decided that whether these changes constituted an adverse employment action was an issue of material fact best left to a jury.

Although the Burlington Northern decision has made it easier for employees charging harassment to file retaliation claims, there are still a number of steps employers can take to minimize the risk of retaliation liability. Employers should review their antidiscrimination and antiharassment policies to ensure that they strictly prohibit any type of retaliation against an employee who files a complaint of harassment or discrimination or participates in the investigation of such complaints. Employers should also require that all employees get the policy and sign an acknowledgment of receipt.

As part of periodic workplace harassment-prevention training, employers should ensure that all employees are aware of their obligation not to retaliate against an employee who files a complaint or participates in an investigation of such a complaint.

There may be cases where unrelated and legitimate adverse action is warranted against employees who have complained about discrimination. In those cases, supervisors should consult with human resources and legal counsel to ensure that such actions are firmly grounded on a legitimate business reason. Employers should document the nonretaliatory reasons for taking such action against an employee involved in harassment charges. The company should retain all relevant documents, including any e-mails, that reflect the sequence of events.

Even though employers cannot entirely shield themselves from harassment claims, they can greatly reduce their exposure by having a good policy, conducting proper training, and handling all complaints promptly, thoroughly, consistently, and fairly. 


John M. Bagyi is a partner at Bond, Schoeneck & King, PLLC. Matthew G. Boyd is an associate with the firm. The authors counsel and represent companies in labor and employment-related contexts. The information contained in this column is intended as general background information and is not intended to be a substitute for professional counseling or legal advice.

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