Economy Blamed for Spike in Workplace Retaliation

Posted March 21, 2012 in Labor and Employment by Keith Ecker

Retaliation by employers was at an all-time high in 2011, according to recent statistics released by Equal Employment Opportunity Commission (EEOC). According to the data, retaliation claims made up 37.4 percent of the total number of overall charges filed in the 2011 fiscal year. This is the second year that retaliation claims have eclipsed charges of racial discrimination, which made up 35.4 percent of all charges in 2011.

Retaliation charges have been on the rise for the past several years, with a sharp increase occurring between 2006 and 2007. Legal experts credit the spike to a number of factors that occurred during this period, from the downturn in the economy to a game-changing Supreme Court ruling.


Retaliation Across the Nation

One of the most recent retaliation lawsuits to make headlines occurred in Sacramento, Calif. In the highly publicized case, a physician assistant had filed at least 18 complaints against staff members over a two-year period. In her complaints, she alleged that a vengeful surgeon once stabbed her with a needle while another referred to her as “stupid chick” in the operating room.

The physician assistant was terminated and filed a lawsuit against the hospital. The hospital managers claimed that they terminated the her and attempted to deny her unemployment because of her own misconduct. But the hospital failed to convince the jury in the trial, awarding the physician assistant $168 million, which is the largest judgment for a single victim of workplace harassment in U.S. history.

“In our experience, companies are actually acting badly more frequently,” says Jay Rollins, an attorney at Schwartz Rollins. “We are right now working with three people who were terminated within a short period of time after raising a complaint.”

Jay E. Rollins

Jay E. Rollins

Rollins himself recently fought and won a retaliation case on behalf of an employee of the Metropolitan Atlanta Rapid Transit Authority (MARTA). The individual in the case claimed that the transit authority denied him a promotion because of his race. Shortly after raising the claim, he suffered both blatant and subtle forms of retaliation and was placed on a performance-improvement plan on two separate occasions.

“In our case, our client was awarded money for lost wages to make up for denied

promotions,” Rollins says. “We also sought compensatory damages for emotional distress and pain and suffering, and because we named the individual who is the chief of the MARTA police, we were awarded punitive damages against her.”


It’s the Economy

Experts speculate that part of the reason for this uptick in retaliation has to do with the struggling economy. However, exactly how the economy has impacted the attitudes of employers is up for debate.

R. Scott Oswald, managing principal of the Employment Law Group, believes that some employers believe that they can terminate employees who raise complaints by lumping them in with employees affected by large layoffs.

“There is a change in the mindset of many institutional employers that they can mix into what would otherwise be a legitimate reduction in the workforce individuals who may have complained about workplace discrimination,” Oswald says.

In addition, as layoffs have increased in frequency, employers have become less inclined to notify employees in advance of issues relating to the layoffs. This lack of explanation has also contributed to an increase in retaliation claims.

R. Scott Oswald

R. Scott Oswald

“When a reduction in force happens with little advance notice, there are many more people left with the question of whether or not the reason they had been included in the reduction was because of something they had complained about or an investigation that he or she may have participated in within the workplace,” Oswald says.

In addition, the economy may be compelling companies to reduce investment in manager training, including training on how to properly deal with employee complaints. Rollins believes this may also be contributing to the rise in retaliation claims.

“There is a real issue with the retaliation happening at the first supervisory level, and those are probably people who haven’t been trained on what they should do or shouldn’t do in the face of a claim,” Rollins says. “Everyone is tightening belts, so putting money into training on EEO stuff is a pretty low priority.”


A Watershed Supreme Court Case

The economy isn’t the only thing contributing to the spike in retaliation claims. A groundbreaking 2006 Supreme Court decision changed the playing field for retaliation claims arising out of Title VII complaints, which are complaints related to discrimination based on a number of protected factors, such as race, religion and gender.

In Burlington Northern v. White, the Supreme Court reduced the threshold required to for an employee to establish a claim of retaliation, making it easier for employees to file and win such claims.

John P. Mahoney

John P. Mahoney

“The Burlington Northern case changed the landscape for retaliation cases,” says John Mahoney, the chairman of the Labor and Employment Practice Group at Tully Rinckey. “With this decision, we can prove retaliation cases more easily than we can prove underlying discrimination claims.”

To prove a discrimination case, employees have to show that there was a concrete personnel action, such as a termination or a loss of a promotion, directly related to the act of discrimination. This isn’t always easy to do. However, this is not a necessary component of a retaliation claim.

“Even if the person does not suffer concrete action but instead suffers action that is materially adverse enough to dissuade the average employee from complaining, that is broad enough to be protected under Title VII,” Mahoney says. “Basically, to prove retaliation, all we have to do is say, ‘My client complained about what we thought was discrimination and shortly thereafter something bad happened to them.'”


Fighting Back

If you believe you’ve been subjected to retaliation in the workplace, legal experts recommend that you first contact a lawyer before you file an official EEOC complaint.

“Even though a lot of people may think they can handle an EEOC charge, the law has become so specialized that I’d say go find a lawyer that has experience representing individuals and understands the intricacies of employment law,” Rollins says.

By contracting an attorney from the outset of your complaint, you and your lawyer can work together to gather evidence and properly shape your case. This includes finding out from your employer the reason why you suffered a specific action.

“You need to learn precisely what it is the employer articulates as the rationale for the decision,” Oswald says. “And if you’ve been terminated, the best way to do this is through the unemployment process. If an employer wants to contest an individual’s unemployment insurance, they must articulate a rationale for the decision.”

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