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This is the third in a series of the top 10 most serious HR mistakes landscape contractors make. To read previous installments, visit www.lawnandlandscape.com and search “Cesare.”
The financial costs associated with retaliation against those employees who file discrimination complaints can be even more serious than the original claims themselves. To make matters worse, employment lawyers have publicly stated that retaliation law is the “new frontier” in the employment discrimination arena. To prove this point, the Equal Employment Opportunity Commission (EEOC) reports that retaliation lawsuits have risen steadily over the past several years and are now the second most popular charge filed against employers, right behind racial discrimination and slightly ahead of sexual discrimination.
This article presents industry-specific examples of retaliation and how to best handle them.
Overview. An employer may not fire, demote, harass or otherwise retaliate against an employee for filing a charge of discrimination, participating in a discrimination proceeding or opposing any illegal employment practice (e.g., 1964 Civil Rights Act, OSHA, Americans with Disabilities, Fair Labor Standards Act). This means that if an employee informs an employer of an illegal human resources activity or participates in a formal investigation related to discrimination, and the employer responds by mistreating the employee, the employer may be committing retaliation.
If a foreman is fired for filing a complaint for not being paid for working over time, the employer’s action could be viewed as retaliation. In addition, forcing someone to be on call every night or demoting them after they filed a complaint could also be considered retaliation. Any sarcastic remarks an employer makes to someone who filed a complaint can also be considered retaliation.
With those examples in mind, it is important to note that even if the employer is found liable for the initial complaint (e.g., discrimination, OSHA violation, Fair Labor Standards Act), the employer can face additional penalties due to retaliation. These financial penalties commonly include: paying back wages, reinstating the employee, reimbursing the employee for attorney and expert witness fees and taking other steps to provide necessary relief.
Definition. Retaliation is legally established against an employer when three conditions are met:
- A person engaged in a protected activity that was in opposition to discrimination, or participated in a covered proceeding.
- The person suffered an adverse employment action that was contemporaneously or subsequent to the protected activity.
- A causal connection exists between the protected activity and the adverse action.
To help landscapers protect themselves against these lawsuits, those three conditions are explained below and online.
Protected activity means opposing any unlawful discrimination practice or participating in a proceeding designed to investigate any discriminatory action.
Thus, any employee who either opposes a discriminatory practice or participates in a formal proceeding investigating a discriminatory practice (e.g., files a charge of discrimination) is protected by federal law.
An adverse employment action typically is a managerial response intended to keep someone from opposing a discriminatory practice, or preventing someone from participating in an employment discrimination proceeding.
Common adverse actions include denial of promotion, refusal to hire, demotion, termination, personal or professional threats, negative performance appraisals, harassment or other unfavorable treatment intended to deter people from pursuing their rights.
Adverse actions are not always immediate or direct. For example, it is illegal for an employer to retaliate against an employee because that employee filed an EEOC discrimination charge against a previous employer. Likewise, it is also illegal to retaliate against an employee if her spouse participated in employment discrimination litigation.
To prove retaliation, there must be a reasonable connection between the protected activity and the adverse action. This connection of the employer getting back at the employee can be affirmed through either direct or circumstantial evidence. Direct evidence could be any verbal or written comments made by the employer linking the adverse action to the protected activity. By the same token, circumstantial evidence can also verify retaliation if there is a strong inference between the protected activity and the adverse action, and the employer cannot produce legitimate evidence refuting the implied connection.
Best-in-class practices. These best-in-class practices are provided to help landscapers minimize the likelihood they will be charged with retaliation.
Human resources audit. First things first: Retaliation can’t exist without discrimination.
Best-in-class landscapers consistently audit all of their human resources practices to ensure they are legal, fair and up to date.
Prompt investigations. Best-in-class companies take all claims of discrimination seriously and conduct prompt, thorough and factual investigations. A key component of those investigations is well-publicized protection against retaliation.
Review of disciplinary Actions. All disciplinary actions (e.g., demotion, transfer, termination) are reviewed to ensure they are not adverse actions against an employee who engaged in a protected activity.
Policy. A formal policy prohibiting retaliation should appear in the employee handbook, be part of the new employee orientation program, and be shared with all supervisors throughout the year.
The author is an industrial psychologist with the Harvest Group, a landscape consulting group. Send your questions to cesare@gie.net.
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