A little ambiguity creates a BIG retaliation headache for employers

Retaliation claims have become the leading cause of action for employees. In fiscal year 2010, retaliation charges filed with the EEOC nationwide accounted for 36.3% of all filings, at 36,258. There are three essential elements of a retaliation claim:

Employee Protected Activity – opposition to discrimination or participation in the statutory complaint process;

Employer Adverse Action – any adverse treatment (beyond a petty slight or a trivial annoyance) that is based on a retaliatory motive and is reasonably likely to deter protected activity; and

Causal Connection – between the protected activity and the adverse action.

What makes retaliation claims so common? Well, it’s not so much because they are are easy for employees to prove. In my opinion, it’s because retaliation claims are tough for employers to disprove prior to trial.

Case in point after the jump…

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A little inconsistency goes a long way.

In Egan v. Freedom Bank, the Seventh Circuit issued a 12-page opinion in which it reversed the lower court and determined that a former bank employee had a triable retaliation claim against Freedom Bank, her former employer. However, you don’t need to read all 12 pages. The opening paragraph of the opinion says it all:

Only seven months after Freedom Bank recruited Belinda Egan to serve as one of its vice presidents, the bank fired her. She had no performance issues, no attendance problems, and no complaints against her. What she did have, though, was dinner shortly after she began with a member of the bank’s board of directors. The board member told her the fantasies he had about her, and she declined his advances. Egan complained to the bank’s Human Resources officer that the board member had sexually harassed her, and the board member resigned. Shortly after that, the person named as the bank’s new president told its then-president that he heard Egan had done some thing that she should have been fired for. And about two months after the new president assumed office, Egan was fired.

Based on the foregoing, the court concluded that a jury might credit the bank’s stance that the new president eliminated Egan’s position simply to reduce inefficiencies. Or it might agree with Egan that the bank terminated her in retaliation for her claim of sexual harassment. But that would be up to a jury — not the judge — to decide. Therefore, the appeals court reversed the lower court’s grant of summary judgment in favor of the employer

Like I said, retaliation cases can be tough for employers to disprove prior to trial.

Judges are not in a position to make credibility determinations. They are not fact-finders. It does not matter if 5 people say “A” and only one person says “B.” If “B” is plausible and suggests that the employer may have retaliated against an employee who complained about unlawful harassment in the workplace, then the jury is going to hear about and decide whether “B” holds up, even in the face of five people saying “A”. And guess what? If the employer doesn’t have the documentation to support “A,” I don’t care how many people say “A,” the employer has an uphill battle ahead because jurors expect documentation from employers.

Ultimately, all it takes is the slightest ambiguity, the smallest of inconsistencies in the employer’s rationale for its adverse employment action and, a retaliation claim is going to trial.