Could something as simple as changing an employee’s shift hours be a form of workplace misconduct? How about purposely not inviting a colleague to a team meeting or being overly critical of his work? What if a coworker is excluded from an email list or her previously assigned role in a project is suddenly changed?
On the surface, these scenarios may seem like nothing more than thoughtless behavior in the workplace. But depending upon the circumstances, they may be purposeful forms of conduct, actually employee misconduct known as retaliation. Sound far-fetched? In fact, retaliation accounted for almost half (43%) of all charges filed with the Equal Employment Opportunity Commission (EEOC) in 2014. It’s a form of misconduct that can be difficult to identify, but is posing an increasing financial and legal risk to organizations.
The 1997 to 2014 EEOC Charge Statistics show retaliation rising dramatically and steadily from 22.6 percent of all charges in 1997 to the current 43% today. An important and complex employee relations issue, here are 3 must-know facts about workplace retaliation.
1. Retaliation has an objective test established by the Supreme Court.
In Burlington Northern & Santa Fe Railway v. White, White, a forklift operator, complained of sexual harassment by her manager and subsequently had her duties re-assigned. White claimed the action amounted to retaliation, and Burlington Northern’s basic defense was that no materially adverse action such as demotion or firing had taken place; therefore, there was no retaliation.
The case made it to the U.S. Supreme Court which created an objective test for retaliation:
“…a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
The objective test is not dependent upon the action necessarily being a significant occurrence such as termination or demotion. If the employer’s action creates an environment which discourages other employees from exercising their protected rights, it can be deemed an adverse employment action. Behavior, which may on the surface seem almost trivial, can be materially adverse under the objective test.
2. In retaliation claims, context matters.
In the same Case, the U.S. Supreme Court stated that an “act that would be immaterial in some situations is material in others.” Take the example of a single mother who files a discrimination claim against her employer but just so happens to have limited commuting options to and from her job. If her employer purposely changes her shift time and creates a hardship by hampering her ability to pick up her children after work, it could be deemed retaliation. That same change in shift time may be no problem whatsoever to a different employee.
Therefore, retaliation claims are evaluated in the context of the underlying circumstances. When Burlington Northern argued that the supervisor’s actions were not material, the Court was clear in its view that it is not the magnitude of the actions. It’s the impact of that action relative to the overall situation.
3. The motive or intent of the retaliation is not the emphasis.
An employee that files a retaliation claim must first show that he/she was engaging in a protected activity. Some examples might be whistleblowing, reporting harassment, discrimination or even fraud. If an employer then acts to adversely alter the employee’s work environment, it might be retaliation.
It’s important to understand that the objective test does not focus on whether the employer intended for the action to have the impact that it did, nor does it rely upon proving the employer’s motivation. These facts alone differentiate retaliation from other types of misconduct claims.
At the recent HR Acuity® Employee Relations Roundtable, Lori Deem, a plaintiff’s attorney with Outten & Golden, posed the question – why, so often, does an employer win a discrimination claim and then turn around and lose a retaliation claim? There are two reasons. Employers do not recognize the large zone of adverse treatment that can be the basis for a retaliation claim. Additionally, juries have an easier time understanding the concept of revenge as opposed to discrimination.
With retaliation on the rise, organizations should be vigilant. Consistent documentation of alleged employee misconduct can help. It can flag patterns of behavior by a supervisor or coworker. It can transform a practitioner’s view of what, at first glance, may appear to be a series of seemingly minor incidents. It can track when an employee gets re-assigned or is complaining about a new set of responsibilities.
Companies should also have multiple channels for complaints given the wide range of actions that can be deemed retaliation. For managers, it is critical to communicate with employees that have filed a retaliation claim early and have periodic check-ins.
There is no doubt that retaliation is one form of employee misconduct that can be “hiding in plain sight,” but the striking trend in claims gives us fair warning. It’s sure to top the list of employee relations challenges for 2016.