Retaliation Claims Present Difficult Challenges, Part I I

(Last month we ran Part I of this article which explored various state and federal anti-retaliation laws and how they protect employees who allege or are about to allege workplace discrimination or other violations.)

Who Can Claim Retaliation?

Those who can sue for retaliation extend beyond current employees engaged in protected activity. For example, employers cannot discriminate against current employees whose spouse or relative has engaged in protected activity, job applicants who have engaged in protected activity against any employer in the past, or former employees reapplying for a position who have engaged in protected activity against the employer.

In Robinson v Shell Oil Co., the United States Supreme Court recently ruled that the anti- retaliation provisions of Title VII (and presumably similar anti-retaliation provisions in other civil rights statutes) extend to former employees. In that case, the plaintiff filed a discrimination claim against Shell after the company fired him. He then sought subsequent employment, and alleged that Shell provided a negative reference because of the discrimination claim. The Supreme Court decided that the anti-retaliation provisions of Title VII extend to former employees who have engaged in protected activity, and allowed Robinson to proceed with his lawsuit against Shell.

The Michigan Supreme Court in DeFlaviis v Lord & Taylor, Inc., recently adopted the Supreme Court's Robinson reasoning, deciding that former employees can sue under the Michigan Elliott-Larsen Civil Rights Act for retaliation. The plaintiff, who was terminated from Lord & Taylor, sued the retailer for age discrimination. Lord & Taylor then provided a negative job reference to a potential employer. The Michigan Supreme Court allowed DeFlaviis to proceed with his lawsuit, ruling that the job reference was retaliatory. In allowing the case to proceed, the court pointed to disputes regarding the accuracy of the negative job reference, as well as the fact that the Lord & Taylor supervisor violated internal job reference guidelines by providing the reference.

How Do Employees Prove Retaliation?

Once it is established that an employee who has the right to bring a retaliation claim has engaged in protected activity, he or she must prove that the employer took the illegal action (termination, cut in pay, demotion, etc.) as a direct result of the protected activity. There are various types of evidence an employee can use to demonstrate this connection. A causal connection is typically established by showing that the employer's decisionmaker reacted poorly to the protected activity prior to terminating the employee or taking some other adverse action. Causation can also be demonstrated by the employer's failure to follow its own internal disciplinary procedures, or by showing especially close supervision or harassment of the employee after the protected activity took place.

Employees on the verge of termination frequently complain to management about discrimination in an effort to create fear that their termination will be seen as retaliation, or to set up a retaliation lawsuit for when they eventually are fired. The Michigan Supreme Court, however, has provided employers with some protection against such conduct. In Shallal v Catholic Social Service of Wayne County, a terminated employee sued under Michigan's whistleblowers' statute, alleging that she was terminated because she had threatened to report her employer for alleged misuse of state funds. However, the evidence in the case established that the employee knew of her impending termination prior to making the threats. The Supreme Court held that employees cannot use the anti-retaliation laws as a "shield" to prevent some adverse employment action. Because the employee knew she was going to be fired before threatening to report her employer, the court upheld the dismissal of her whistleblowers' action.

How Can Employers Protect Themselves Against Retaliation Claims?

Because of the broad and expansive nature of the anti-retaliation laws, employers must be wary not only to avoid actual retaliation, but also to avoid actions which may appear retaliatory in nature.

Supervisors must be trained to understand the breadth of the anti-retaliation laws, as well as the employer's liability if the laws are violated. They must understand that their negative reaction to an employee's protected activity is often the most powerful evidence that a subsequent adverse action against the employee is retaliatory. Thus, even when supervisors believe they have been falsely or unjustly accused of discrimination or some other illegal action, those feelings must not be manifested in their conduct or speech to the individual or other employees.

Also, upper management should closely monitor all adverse employment actions (such as a negative performance appraisal) against employees who have engaged in protected activity to ensure that all standard procedures are followed with respect to that employee.

The cases expanding the coverage of the anti-retaliation laws to former employees are of particular concern for employers who want to provide fair and accurate job references but at the same time are fearful that they will invite a retaliation lawsuit if any negative information about a former employee is provided. The Michigan legislature has provided some protection for employers. A 1996 statute provides that employers who provide information to a prospective employer about a former employee's job performance which is "documented in the employee's personnel file" are immune from civil liability, as long as the employer acts in "good faith."

To minimize the risks of a lawsuit for a retaliatory job reference, and to maximize the protection afforded by the job reference statute, employers should follow these rules in providing references for former employees who have engaged in protected activity: (1) provide the same level of detailed information as is provided for other former employees; (2) provide a factual account of the person's job performance, and avoid using subjective, conclusory descriptions; and (3) make sure that any information provided in a reference is also contained in the employee's personnel file.

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