1. Protecting Your Organization from Retaliation Claims Raymond L
Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. Hogge Law Attorneys and Counselors at Law 500 E. Plume Street, Suite 800 Norfolk, Virginia (757) This presentation is available on VirginiaLaborLaw.com

2. Why is Retaliation Important?
Protecting Your Organization from Retaliation Claims Raymond 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. What Laws Prohibit Retaliation?
Protecting Your Organization from Retaliation Claims Raymond 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. What is Retaliation? Retaliation is (“causal link”)
Protecting Your Organization from Retaliation Claims Raymond 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. Who is a Protected Employee?
Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr.
Who is a Protected Employee?
Current Employees
Applicants
Former Employees

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

7. What Actions Are Protected?
Protecting Your Organization from Retaliation Claims Raymond 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.
The employee must have an objectively reasonable belief that what he is opposing is unlawful. Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir 2006).

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

9. What Actions Are Protected?
Protecting Your Organization from Retaliation Claims Raymond 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. What is an Adverse Action?
Protecting Your Organization from Retaliation Claims Raymond 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. What is an Adverse Action? Sante Fe Railway v. White,
Protecting Your Organization from Retaliation Claims Raymond 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. Burlington Northern v. White
Protecting Your Organization from Retaliation Claims Raymond 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. Burlington Northern v. White
Protecting Your Organization from Retaliation Claims Raymond 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. Burlington Northern v. White
Protecting Your Organization from Retaliation Claims Raymond 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. Burlington Northern v. White
Protecting Your Organization from Retaliation Claims Raymond 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. Burlington Northern v. White
Protecting Your Organization from Retaliation Claims Raymond 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. Burlington Northern v. White
Protecting Your Organization from Retaliation Claims Raymond 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. Burlington Northern v. White
Protecting Your Organization from Retaliation Claims Raymond 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. Burlington Northern v. White
Protecting Your Organization from Retaliation Claims Raymond 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. Burlington Northern v. White
Protecting Your Organization from Retaliation Claims Raymond 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. Burlington Northern v. White
Protecting Your Organization from Retaliation Claims Raymond 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. Is proof of retaliatory intent still required?
Protecting Your Organization from Retaliation Claims Raymond 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 Claims Raymond L
Protecting Your Organization from Retaliation Claims Raymond 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. Preventing Retaliation Liability
Protecting Your Organization from Retaliation Claims Raymond 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. Preventing Retaliation Liability
Protecting Your Organization from Retaliation Claims Raymond 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. Preventing Retaliation Liability
Protecting Your Organization from Retaliation Claims Raymond 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. Preventing Retaliation Liability
Protecting Your Organization from Retaliation Claims Raymond 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. Preventing Retaliation Liability
Protecting Your Organization from Retaliation Claims Raymond 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. Preventing Retaliation Liability
Protecting Your Organization from Retaliation Claims Raymond 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. Preventing Retaliation Liability
Protecting Your Organization from Retaliation Claims Raymond 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. Preventing Retaliation Liability
Protecting Your Organization from Retaliation Claims Raymond 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. Preventing Retaliation Liability
Protecting Your Organization from Retaliation Claims Raymond 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. Preventing Retaliation Liability
Protecting Your Organization from Retaliation Claims Raymond 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. Preventing Retaliation Liability
Protecting Your Organization from Retaliation Claims Raymond 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. Preventing Retaliation Liability
Protecting Your Organization from Retaliation Claims Raymond 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. How to Respond to Retaliation Claims
Protecting Your Organization from Retaliation Claims Raymond 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 Claims Raymond L
Protecting Your Organization from Retaliation Claims Raymond L. Hogge, Jr. Hogge Law Attorneys and Counselors at Law 999 Waterside Drive, Suite 1313 Norfolk, Virginia (757) This presentation is available on VirginiaLaborLaw.com