Are You Prepared to Deal With Expanded Anti-Retaliation Laws?

Workforce Week
Management
May 2009

The job of the human resources practitioner in dealing with the anti-retaliation provisions of the various federal employment laws continues to get a lot harder. Not only are the actions that constitute retaliation a lot more difficult to pinpoint, but the description of those that come within the proscriptions of the various anti-retaliation laws has now been expanded—most recently by a January 2009 U.S. Supreme Court decision. By Mark Downey

Here’s the scenario: One of your employees has complained of being subjected to discriminatory treatment, and because you’re a good and conscientious employer, you’re doing the right thing: You immediately start to investigate that complaint. You meet with the employee making the complaint. You meet with the alleged perpetrator of the offense. You meet with the individuals that are said to be witnesses to the actions you’re investigating. Then, out of the blue, during an interview of one of the witnesses, that witness tells you a story. The story you are told, however, is not about the incident that you are investigating. Instead, you are told about an entirely different instance of what might be an unlawful employment action.
As you walk out of the meeting you ask yourself, “What just happened?”
According to the U.S. Supreme Court’s January decision in Crawford v. Metropolitan Government of Nashville and Davidson County, what just happened is that the individual you just interviewed has now participated in a protected activity. It may not be a typical complaint—the employee was not the one who came to HR and said, “My boss did this.” And the employee may not have even been the one to initiate the factual recitation—that is, the story was only told in response to questions by the investigator during the investigation process.
But the story told by the witness does constitute opposition to an unlawful employment practice. As a result, that employee is now within the protections from retaliation under the various anti-retaliation provisions of Title VII, the ADA, the ADEA and many other federal and state employment laws prohibiting retaliation.
The Crawford decision was not the only time that the anti-retaliation provisions of Title VII, the ADA and the ADEA have been expanded. While the anti-retaliation laws have always been viewed as a protection from retaliation for individuals who either oppose an unlawful employment practice or participate in an action to enforce the anti-discrimination laws, these laws do not stop there. In 2006, the U.S. Supreme Court ruled that a violation of these anti-retaliation provisions occurs whenever the employer takes an action that would tend to dissuade a reasonable employee from making a complaint or from participating in an enforcement activity such as an investigation or other proceeding. What this means is that actions such as demotions, decisions not to promote, changing the employee’s job duties, discipline and terminations can all expose the employer to potential liability for violation of the anti-retaliation provisions of Title VII and the other federal employment laws. Retaliation is no longer just reserved for situations where the employee is demoted or fired.
With that decision in 2006 and the Supreme Court’s more recent decision in Crawford, holding that the anti-retaliation laws cover a person who simply provided information of unlawful activities in response to questioning by the employer, the application of the anti-retaliation provisions of the various federal laws is expanding.

Full Story: http://www.workforce.com/section/03/feature/26/42/84/index.html