Publications
The Prohibition Against Retaliation: It’s Much More Than You Think It Is
There are numerous federal and state statutes that prohibit employers from taking or threatening, even implicitly, action which is adverse to an employee because the employee, in good faith, resisted or complained about unlawful harassment, discrimination or other misconduct. Most of these statutes also protect employees who, while not the target of the unlawful conduct, opposed it by, for instance, making reports or participating in litigation.
This principle seems sensible – employers should not be able to threaten or intimidate employees who have bona fide claims into foregoing their rights. When we train managers and executives, we have no trouble in getting them to buy into the concept that an employer cannot punish an employee for exercising his or her legal rights. It makes sense and squares with our concepts of fairness.
But what about the Mary and Sam situation, where an employee brings, and loses, a bogus claim? It is not as easy for managers and executives to accept the notion that an employer should be precluded from considering that fact when deciding who gets promoted, who gets a raise, or who gets the corner office. After all, character traits, like good judgment, loyalty and the ability work through conflicts, are important considerations when an employer makes judgments about which employees should move up the ladder, aren’t they?
Maybe so, but here is the law: so long as an employee brought his or her claim in good faith, the fact that the employee ultimately loses does not diminish the scope of the protection against retaliation to which the employee is entitled. You simply cannot hold it against the employee for having filed and pursued a claim. For instance, consider some of these recent retaliation claims:
- Robert Bianchi alleged that, while a Lieutenant in the City of Philadelphia's Fire Department, his co-workers and subordinates harassed him because they perceived him as being gay. Ultimately, the Department terminated Bianchi. Bianchi sued for sexual harassment – and lost. Bianchi, however, claimed that he was terminated not because he was bad employee, but for complaining about being harassed. The jury awarded Bianchi more than $1.2 million in damages, and the appellate court upheld the award.
- A federal court in San Antonio threw out Raymond Morantes's claim of discrimination against his employer, the Federal Aviation Administration. Thereafter, Morantes was passed over for a promotion. Morantes claimed that his managers passed him over because they were upset at his having sued them. A jury agreed, and awarded Morantes $500,000.
- Eunice Lafate filed a discrimination claim, asserting that she had been passed over for a promotion at Chase Manhattan because of her race. She lost. Thereafter, however, she claimed that she had been excluded from management meetings and given unfavorable evaluations because she had filed the claim. The jury awarded her $600,000.
Remember also that a retaliation claim can be founded on the allegation that the employer took adverse action against an employee because the employee participated in an employment-related lawsuit brought by someone else. Consider how far this tenet of law can be taken.
A receptionist at the Dillard Paper Company in Alabama sued the company for sexual harassment. The receptionist’s lawyer took the deposition of one of the company’s employees, Harry Merritt. Merritt admitted in the deposition that he had told the receptionist that a certain customer "sure is taken with you, why don't you take care of him sometime?" and he acknowledged subjecting the receptionist to repeated vulgarities. Dillard ultimately settled the claim and, shortly thereafter, fired Merritt. Merritt said his boss told him, "Your deposition was the most damning to Dillard's case, and you no longer have a place here."
Merritt filed a retaliation suit, claiming that he was wrongfully fired for giving truthful testimony in an employment suit. Dillard claimed that they terminated Merritt not because he testified, but because of the fact that he confessed to having engaged in conduct that violated Dillard’s policies.
The trial court dismissed Merritt’s case, but the appeals court reinstated it, and the suit was eventually settled. The lesson: virtually nothing related to an employee’s testimony or other participation in a claim can be used against them. There are fine (sometimes absurd) lines to be drawn here, which will require counsel. For instance, if Dillard had interviewed Merritt after the trial and asked him whether he had harassed the receptionist, and if Merritt answered truthfully in the interview, Dillard could have at least argued that it fired Merritt for what he told them in the interview, and not because of what he confessed to in the trial.
Counsel Consulting Group LLC helps companies throughout the United States avoid employment and HR-related claims and liabilities. CCG assesses existing policies, procedures and problem areas; it provides customized liability-avoidance training to managers and executives; and it designs and implements business techniques that reduce employment liability risks on a long term basis. CCG also offers specialized workshops for managers and HR executives, customized consulting in focused employment-related areas, and CD-ROM and web-based training alternatives. For more information, contact us at info@powelltrachtman.com and visit our website at www.counselconsulting.com.
Powell Trachtman Logan Carrle & Lombardo PC. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.
Various insurance carriers have approved Powell Trachtman as counsel for the defense of employment practices claims, directors and officers liability claims, and other claims litigated in Pennsylvania and New Jersey. If a claim is brought against you, please feel free to contact us for further information.
