Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr.

1. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr.Hogge LawAttorneys and Counselors at Law500 E. Plume Street, Suite 800Norfolk, Virginia 23510(757) 961-5400This presentation is available on VirginiaLaborLaw.com

2. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. Why is Retaliation Important? • Retaliation is prohibited under many federal and state statutes. • Plaintiff can lose underlying claim and still win retaliation claim. • Can expose employers to greater liability than underlying claim. • Retaliation claims are on the rise.

3. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. What Laws Prohibit Retaliation? • Title VII and other EEO laws • FLSA and other wage hour laws • FMLA • Virginia Workers’ Compensation Act • OSHA • And more....

4. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. What is Retaliation? • Retaliation is • an “adverse action” • taken against an “employee” • because the person engaged in (“causal link”) • a “protected activity”

5. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. Who is a Protected Employee? • Current Employees • Applicants • Former Employees

6. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. What Actions Are Protected? • Opposition • Participation • Seeking or obtaining benefits

7. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. What Actions Are Protected? • Opposition - examples • Speaking out against illegal conduct • Questioning illegal conduct • Refusing to violate law • Lodging an internal complaint • Facebook? The employee must have an objectively reasonable belief that what he is opposing is unlawful.

8. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. What Actions Are Protected? • Participation - examples • Filing an agency charge • Providing evidence in an agency investigation • Filing a lawsuit • Testifying

9. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. What Actions Are Protected? • Seeking or obtaining benefits - examples • Requesting or taking FMLA leave • Requesting ADA accommodation • Requesting FLSA overtime • Filing worker’s compensation claim

10. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. What is an Adverse Action? • Termination? • Demotion? • Denial of promotion? • “Cold shoulder?” • Slights from coworkers? • Not being invited to lunch? • Not being invited to the SHRM convention?

11. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. What is an Adverse Action? Burlington Northern & Sante Fe Railway v. White, 548 U.S. 53 (U.S. S. Ct. 2006)

12. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. Burlington Northern v. White • Sheila White complained about sexist remarks by supervisor • Burlington punished supervisor • Burlington changed White’s job duties • Burlington suspended White for insubordination, but reversed • No loss of pay or benefits • Issue: adverse action?

13. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. Burlington Northern v. White • “The antiretaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.” • Plaintiff must prove some harm to establish adverse action What kind of harm, and how much?

14. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. Burlington Northern v. White • “The antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that effect the terms and conditions of employment” • Plaintiff need not prove loss of pay or benefits to establish adverse action

15. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. Burlington Northern v. White • “An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace” • Plaintiff need not prove harm at workplace to establish adverse action

16. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. Burlington Northern v. White • Title VII retaliation provision applies only to employer actions “that would have been materially adverse to a reasonable employee or job applicant.” • Action must be more than adverse; it must be materially adverse

17. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. Burlington Northern v. White • To establish adverse action “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in the present context means it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

18. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. Burlington Northern v. White • “Reasonable employee” is an objective standard, not subjective • Unresolved issue: What if an action meets the objective standard, but the employee subjectively did not perceived it as materially adverse? What if the action had no effect on the employee at all?

19. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. Burlington Northern v. White • The Title VII retaliation provision prohibits “employer actions that are likely to deter victims of discrimination from complaining to the EEOC, the courts and their employers.” • Important: “and their employers”

20. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. Burlington Northern v. White • Not all objectionable actions are materially adverse. The harm caused by the action must be “significant” • “It is important to separate significant from trivial harm” • “Petty slights, minor annoyances, and simple lack of good manners” are not sufficient

21. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. Burlington Northern v. White • “The significance of any given act of retaliation will often depend upon the particular circumstances. Context matters…. An act that would be immaterial in some situations is material in others.” • Litigation Note: This may prevent summary judgment in many retaliation cases

22. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. What About Intent? • In Burlington Northern the Court noted: “Burlington does not question the jury’s determination that the motivation for these acts was retaliatory” • Because “motivation” was not disputed in Burlington Northern, the Court did not discuss intent • Is proof of retaliatory intent still required?

23. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. What About Intent? • Assuming proof of intent is still required, what is the relevant intent / motivation / animus? • Intent to punish or do harm? • Intent to take the challenged action? • What causal connection must exist between the act of the employer and the act of the employer? • Courts are struggling with this question

24. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. Preventing Retaliation Liability • Adopt strong written antiretaliation policy • Evidence of actual policy and practice • Promotes consistency in organizational practices • Written documents are persuasive to juries • Agencies expect antiretaliation policy • Lack of policy may suggest organization tolerates retaliation

25. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. Preventing Retaliation Liability • Include in antiretaliation policy: • Company prohibits retaliation • Explanation of what retaliation is • Examples of retaliation • Retaliation will result in discipline or discharge • Procedure for reporting retaliation • Summary of investigatory procedures

26. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. Preventing Retaliation Liability • Include antiretaliation statement in personnel documents • Grievance procedure • Grievance forms • Open door policy • EEO policy • Sexual harassment policy • Employee evaluation forms

27. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. Preventing Retaliation Liability • Train supervisors and managers • Retaliation policy and procedures • How to prevent retaliation • How to recognize and respond to retaliation • Use case studies and practice sessions • Require attendance at training • Keep training attendance records • Keep records of training materials

28. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. Preventing Retaliation Liability • Counsel supervisors who may engage in retaliation • Retaliation is natural response of supervisor to employee accusation or complaint • Remind supervisor that retaliation is illegal and prohibited • Get written commitment from supervisor not to retaliate

29. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. Preventing Retaliation Liability • Promptly investigate • Retaliation complaints • Reports of retaliation • Information suggesting possible retaliation • Complaints that may reflect retaliation • Inform direct supervisors so they can monitor situation

30. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. Preventing Retaliation Liability • Prepare written report documenting • Reason for investigation • Investigative process • List of witnesses • List of documents • Factual findings and conclusions • Recommended remedial action, if any • This report is for internal use only and should not be shared with the employee or the accused

31. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. Preventing Retaliation Liability • Conclude investigation and take remedial action, if any, promptly • Orally inform employee and accused supervisor of outcome of investigation • If retaliation not found, explain reason to employee • If retaliation is found, take appropriate disciplinary or remedial action

32. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. Preventing Retaliation Liability • Follow up with complaining employee to confirm no further retaliation • 30 days • 60 days • 6 months • Document the follow up meetings

33. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. Preventing Retaliation Liability • Do not let fear of retaliation claim prevent you from managing employee • Apply performance standards consistently • Apply standards of conduct consistently • Apply discipline consistently

34. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. Preventing Retaliation Liability • Consistency is one the best ways to prevent retaliation claims and one of the best ways to defend them • Apply performance standards consistently • Apply standards of conduct consistently • Apply discipline consistently

35. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. Preventing Retaliation Liability • Documentation is crucial to prove consistency and non-retaliation • Document job performance through evaluations on a regular schedule • Document performance deficiencies • Document disciplinary action • Document employee complaints

36. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr. How to Respond to Retaliation Claims • Apply the same techniques you use for responding to and investigating underlying claims of discrimination, harassment, etc. • Follow your antiretaliation policy

37. Protecting Your Organization from Retaliation ClaimsRaymond L. Hogge, Jr.Hogge LawAttorneys and Counselors at Law999 Waterside Drive, Suite 1313Norfolk, Virginia 23510(757) 961-5400This presentation is available on VirginiaLaborLaw.com