1. Understanding Retaliation Employment Law Seminar June 21, 2012 Presented by: Sabrina Hooper Deputy Director TN Human Rights Commission

2. Retaliation Retaliation occurs when an employer, employment agency, or labor organization takes an adverse action against a covered individual because he or she engaged or participated in a protected activity. 4-21-301. Discriminatory practices

3. Adverse Action Examples of adverse actions include: – termination, refusal to hire, and failure to promote, – threats, unjustified negative evaluations, unjustified negative references, or increased surveillance, assault or – unfounded civil or criminal charges that are likely to deter reasonable people from pursuing their rights. – It is unlawful for a worker's current employer to retaliate against him/her for pursuing a charge against a former employer.

4. Adverse Action Adverse actions may not include, – a stray negative comments in an otherwise positive or neutral evaluation, or – a negative comments that are justified by an employee's poor work performance or history.

5. Covered Individual People who have opposed unlawful practices, participated in proceedings, or requested accommodations related to employment discrimination based on race, color, sex, religion, national origin, age, or disability. Individuals who have a close association with someone who has engaged in such protected activity.

6. Protected Activity Participation in an employment discrimination proceeding means, – Filing a charge of employment discrimination; – Cooperating with an internal investigation of alleged discriminatory practices; or – Serving as a witness in an investigation or litigation. – Threatening to file a charge of discrimination; – Picketing; or – Refusing to obey an order reasonably believed to be discriminatory.

7. Retaliation Stats for THRC Between July 1, 2011 and May 31, 2012, the Commission accepted 497 complaints of employment discrimination. Of those, 187 or 38% included allegations of retaliation,16 of which listed retaliation as the only basis alleged. During that same time period, we closed 431 charges. Of those, 172 or 40% included allegations of retaliation, 19 of which listed retaliation as the only basis alleged. Of the 172 retaliation charges closed during that time period, 30 were closed through mediation or settlement, with monetary benefits ranging from $100 to $12,800, for a total of $45,432 in benefits paid to Complainants. As of May 31, 2012, THRC had 318 open charges pending. Of those, 135 or 42% included allegations of retaliation, 13 of which list retaliation as the only basis alleged.

8. What has THRC seen? Case 1: An employee alleged discrimination based on race and retaliation.

9. What has THRC seen? Case 1 (Allegation): An employee during their probationary period began to notice company practices that were unethical, if not illegal. The employee complained to the manager who immediately became upset and told the employee it is not your concern. The employee complained to the next level supervisor. Shortly, after this complaint the employee began receiving write-ups and ultimately fired.

10. What has THRC seen? Case 2: An employee filed a charge of sexual harassment and retaliation.

11. What has THRC seen? Case 2 (Allegation): An employee stated a co-worker over a period of time continued to make sexual comments while at work. The employee complained to their immediate supervisor and up the chain of command. The employee was told that the co-worker was only joking and they should learn to ignore it and work together as a team. The employee continued to complain about the comments. The complaining employee was written up for poor work performance, suspended, and ultimately fired.

12. What EEOC has settled? Case 1: Bankers Asset Management, Inc., real estate company had a lawsuit filed against them based on race discrimination and retaliation.

13. What EEOC has settled? Case 1 (Allegation): The EEOCs suit, Civil Action No. 4:10-CV-002070-SWW, filed in U.S. District Court for the Eastern District of Arkansas, Western Division, alleged that the company excluded black applicants for jobs at the companys Little Rock location based upon their race. The EEOC also alleged that the company retaliated against other employees and former employees for opposing or testifying about the race discrimination, by demoting and forcing one out of her job and by suing others in state court. The EEOC attempted to resolve this matter during conciliation prior to filing suit.

14. What EEOC has settled? Case 2: The suit, filed by the EEOC on behalf of EaglePicher Technologies employee Brenda McCollum, was based on the companys 2004 termination of her. The EEOC alleged the firing was in retaliation for McCollums complaints of sex discrimination and her participation in a 2003 discrimination lawsuit filed by the EEOC.

15. What EEOC has settled? Case 2 (Allegation): McCollum and seven other female employees at EaglePichers Joplin, Mo.-based facility shared a $200,000 settlement obtained by the EEOC in 2003. According to the EEOC, McCollum continued working at the company after the 2003 suit, but she was subjected to retaliatory treatment by management and ultimately was terminated. McCollum returned to work in 2005 after a union arbitrator determined that her termination violated the unions contract and ordered her reinstatement with backpay. The EEOC alleged that McCollums termination also violated Title VII of the Civil Rights Act of 1964 and that she was entitled to additional backpay and compensatory damages.

16. What does it cost? CASE 1: Bankers Asset Management, Inc., will pay $600,000 to former employees and a class of applicants to settle a race discrimination and retaliation lawsuit filed. In addition 3 year consent decree outlining measures to corrective the practice. CASE 2: EaglePicher Technologies, LLC, which filed for bankruptcy protection in 2005, has settled a retaliation and termination lawsuit with the U.S. Equal Employment Opportunity Commission (EEOC) for over $35,000 through its bankruptcy trustee.

17. Contact Information Tennessee Human Rights Commission 710 James Robertson Parkway, Suite 100 Nashville, Tennessee 37243-1219 Phone: (615)-741-5825 1-800-251-3589 www.tn.gov/humanrights