February 21, 2012

The United States Equal Employment Opportunity Commission recently announced that retaliation charges accounted for the highest overall percentage of private sector complaints in fiscal year 2011.  Employers, therefore, must be on the lookout for those “magic words” spoken by an employee that may qualify as a protected activity triggering a subsequent claim of retaliation.

An employee states a claim for retaliation by demonstrating that she (1) engaged in protected activity, (2) suffered an adverse employment action either contemporaneously with or after the protected activity, and (3) there was a causal connection between the protected activity and the adverse employment action.  The employer may defeat Plaintiff’s claim by showing a legitimate, non-retaliatory reason for the adverse action.

Unquestionably, protected conduct includes the filing of formal charges of discrimination and informal protests of discriminatory activities, including complaints to management.  It also includes the expression of support by an employee for a co-worker who has filed a formal charge of discrimination.  Protected conduct, however, does not include generalized complaints by an employee to a supervisor or other management team member about unfair treatment.  The conduct – if it is to be protected – must convey a protest of discriminatory practices.  Therefore, an employee’s complaint that a manager treated her unfairly, rudely or is too tough on her, likely will not constitute a protected activity.  Similarly, an employee’s complaint that he is being treated differently than another employee – with nothing more – is insufficient to constitute a protected activity.   The United States Court of Appeals for the Third Circuit recently found in favor of the employer in a retaliation claim because, while the employee complained to her supervisor that she was treating her differently than other employees, the employee failed to provide evidence that she specifically complained that the treatment was based on her race or gender.  See Warfield v. SEPTA , No. 11-2606, 2012 WL 363062 (3d Cir. Feb. 6, 2012).

When an employee, however, complains that a manager is unfair, rude or more demanding because they are a woman, African-American, or disabled – an employer’s radar should be buzzing.  It is those complaints of different or unfair treatment tied to a protected classification that generally qualify as protected speech.  Therefore, any subsequent adverse employment action taken by the employer may be considered by the employee as retaliation for her protected activity.  These subsequent adverse actions may range from a shift change, loss of overtime opportunity, poor performance evaluation, demotion or lower pay raise to a termination. An employer, however, can defeat an employee’s retaliation claim by demonstrating a legitimate, non-retaliatory reason for the adverse employment action.  Therefore, if the employer changed an employee’s shift or eliminated overtime because the demands of the business necessitated the change, or if the employer demoted an employee because their performance was poor, then the employer will have met its evidentiary burden of establishing a non-retaliatory reason for the adverse action.  It is critical that employers carefully, accurately and comprehensively memorialize their legitimate, business related reasons before pulling the trigger on an adverse employment action.

Once the employer hears those “magic words,” they can minimize their exposure by springing to action.  The employee complaint should be investigated carefully and comprehensively and the employee should be informed of the outcome.  Any contemporaneous or subsequent adverse employment action taken against the employee should be supported by a legitimate, non-retaliatory, business related reason. Being proactive is a sure-fire way to head off a retaliation claim before it is too late.