1. Reducing Retaliation Claims Through Good Employment Practices
Presented by UE in Partnership With CUPA-HR
Jennifer Kirkland, Washington and Lee University Miriam McKendall, Holland & Knight Hillary Pettegrew, United Educators

2. Reducing Retaliation Claims
Retaliation defined:
Employee engages in legally “protected activity”
Adverse action occurs
Causal connection exists between protected activity and adverse action
Employer can defend by showing legitimate reason for action
Reducing Retaliation Claims

3. Common retaliation risks: Employee engages in adverse activity by…
Complaining of discrimination/harassment or participating in investigation
Requesting accommodation (ADA, religious)
Taking protected leave (ADA, FMLA, state law)
“Blowing whistle” (FCA, OSHA)
Reducing Retaliation Claims

4. Why are retaliation claims difficult?
Retaliation claim can go to jury even if “underlying” claim is thrown out
Jurors understand retaliation as natural human reaction
Legal developments make claims easier to bring
Claims often very expensive
Reducing Retaliation Claims

5. Reducing Retaliation Claims
Trends in EEOC Charges
Reducing Retaliation Claims

6. Trends in UE Discrimination Claims
Reducing Retaliation Claims

7. Policies prohibiting retaliation
Implement written policies that state retaliation is prohibited and commit institution to take corrective action if it occurs
Disseminate policies to employees
Train employees on policies
Include “good faith” requirement
Reducing Retaliation Claims

8. Educating employees on policies
Explain policies to new employees during orientation
Remind current employees of policies annually
Discuss retaliation prohibition in “refresher” training for current employees
Reducing Retaliation Claims

9. Reducing Retaliation Claims
Questions and Answers
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Reducing Retaliation Claims

10. Reducing Retaliation Claims
Scenario:
Christine has worked as a math department secretary for 15 years, consistently receiving “meets expectations” evaluations from several different department chairs, although other faculty have complained about her poor responsiveness and refusal to learn new technology. There is no written job description. Christine recently took FMLA leave to care for her seriously ill mother and returned to find she was reporting to a new department chair with whom she has never gotten along. Shortly after Christine came back to work, the new chair gave her an “unsatisfactory” performance evaluation and warned that she would be terminated without rapid improvement. Christine immediately complained to HR that the chair was retaliating against her for taking FMLA leave.
Reducing Retaliation Claims

11. Educating Supervisors on Policy
Review policy language and give concrete examples
Emphasize liability for retaliation is possible regardless of original complaint’s validity
Get “buy in” from the top – statement from president or provost makes expectations clear
Reducing Retaliation Claims

12. Working with Faculty Supervisors
Avoid using term “training”
Respect their time
Use case study approach and encourage debate
Reducing Retaliation Claims

13. Educating Supervisors on Good Employment Management
Emphasize proactivity – teach supervisors what they SHOULD do
Improving supervisors’ job performance improves workplace for everyone, with fewer retaliation claims likely
Requires getting supervisors to understand and follow basic rules of good management
Reducing Retaliation Claims

14. Supervisors’ Clarity and Consistency Critical
Be clear
Explain all job performance and conduct expectations
Refer to written job descriptions, employer policies
Be consistent
Treat all employees alike when evaluating performance
Document ongoing performance feedback – negative and positive
Reducing Retaliation Claims

15. Prior to Employee Discipline
Before taking disciplinary action, supervisors should:
Consider timing of action
Anticipate employee’s viewpoint and response
Review whether documentation supports the action
Consult HR if questions are raised
Reducing Retaliation Claims

16. Good Management Requires a Balance
Supervisors need balance between letting small problems grow and documenting every trivial issue
Avoid “building files” on problem employees vs. others
Watch conduct of employee’s co-workers after complaint
Reducing Retaliation Claims

17. Responding to Complaints: Tips for Supervisors
Do not display negative reaction to employee
Get HR involved and rely on them for help throughout process
Do not take disciplinary action against complaining employee without prior approval
Reducing Retaliation Claims

18. Responding to Complaints: Tips for Institutions
Remind employee and supervisor of policy against retaliation
Review with supervisor other “do’s” and “don’ts”
Investigate complaint and document
Follow up during and after investigation
Clarify that normal performance and conduct expectations apply regardless of complaint
Reducing Retaliation Claims

19. Are Interim Measures Needed?
Consider interim measures during investigation
Could include temporarily changing employee’s location, chain of command or evaluation process
Suggest first seeking employee’s consent or consulting legal counsel
Reducing Retaliation Claims

20. Reducing Retaliation Claims
Questions and Answers
Type question into box on lower left hand of your screen, OR
Press star-one on your phone
Reducing Retaliation Claims

21. Reducing Retaliation Claims