|Watergate Maxim of “It’s Not the Crime, It’s the Cover-Up” Comes Back to Life in Rising Level of Retaliation Claims|
|Vol. 9 No. 6|
The Watergate scandal taught us that a bad idea (a burglary) can be made infinitely worse by doing something else stupid (covering it up) in response. The modern-day equivalent is seen in the issue of retaliation—where the bad thing is an illegal act (such as employment discrimination) and the “made worse” part is retaliation (such as in firing the person who raised the issue, or the person who gave “testimony” in the investigation, etc.). This would seem to be obvious—but statistics (and recent legal cases) tell us otherwise.
As reported in Wolters Kluwer’s Employee Relations News:
Speaking to attendees at the Chicago Bar Association’s annual labor and employment law update last month, EEOC regional attorney John Hendrickson said that EEOC charge traffic is "through the roof" with the down economy. In fiscal year 2010, 99,922 charges were filed, with retaliation charges up dramatically — 36,358 such charges filed last year—amazingly outpacing the number of race discrimination charges that were filed. For the first time in the agency’s 45-year history, retaliation charges were more numerous than any other.
… Recapping developments over the last year, Hendrickson observed that the standard as to what constitutes retaliation is getting looser. … You no longer have to be the person who engaged in the protected activity to bring a claim of retaliation, so long as you are associated with that person, Hendrickson observed. Indeed, in January, the Supreme Court held that an employee who was fired shortly after his fiancée filed an EEOC charge against their employer had standing to file a Title VII retaliation lawsuit (Thompson v North Am Stainless, USSCt, January 24, 2011).
… As Hendrickson points out, awareness of employee protections against retaliation will grow — and the case law has tipped toward protecting employees. … retaliation claims face less of a hurdle in court—it’s just not worth the risk of employer liability. Training supervisors and managers to refrain from retaliatory conduct following a complaint of discrimination would be a wise and timely business investment.
Schools are reminded to ensure that all employment-related actions (hiring, warnings, terminations, etc.) are based solely on job-related needs. Taking action on any other basis—or not being able to prove the basis for your action—can lead quickly to legal issues, to say nothing of the morale and culture-related damage that can occur.
To this long-standing advice, we need to add a corollary: Be particularly careful about taking an adverse employment action against anyone with a potential claim against the school—for example, an employee who recently gave testimony in a harassment investigation or someone who raised an allegation themselves. This doesn’t mean that the school can’t take any action—the school should never be paralyzed in this way. Rather, it simply means “proceed with caution”—and make sure that objective observers would agree that the school’s actions were based strictly on valid, job-related issues and couldn’t be perceived to be retaliatory against the employee. As always, consult with your employment attorney at the earliest moment when such an issue arises.