The Lurking Threat of Employee Retaliation Claims

Prepared in connection with the seminar, "Recent Developments in Employment Law," presented by Sterling Education Services, LLC in Chattanooga, Tennessee on May 8, 2003

A. ELEMENTS OF A PRIMA FACIE CASE OF RETALIATION

"Retaliation." Technically, it means "repayment in kind," a sort of revenge. Nations do it when they attack one another, claiming justification because of something the other nation did. People do it in their everyday life, seeking a "payback" for anything from getting cut off in traffic to mowing across a property line. Employers retaliate against employees, too, every day. Firing an employee who has stolen from the company is a type of retaliation.

But in employment law, "retaliation" has a specific meaning which should strike fear in the hearts of employers. In this context, retaliation means an unlawful payback by the employer for something lawful the employee did. And that type of payback, or retaliation, could lead to a sizeable damages award against the employer.

Tennessee employers should be aware of the possibility of retaliation claims in at least two contexts – (1) retaliation made unlawful by statute, such as Title VII and other federal anti-discrimination laws, or by the Tennessee Human Rights Act; and (2) retaliation made unlawful by common law, such as a termination of employment in violation of some public policy, or under Tennessee's "whistleblower" statute. The different types of claims are similar, but they are also distinct. These materials will discuss them separately.

1. Retaliation Under Title VII and the Tennessee Human Rights Act.

To make a prima facie claim of retaliation under Title VII, a plaintiff must prove:

he engaged in an activity protected by Title VII;
this exercise of protected rights was known to the employer;
the employer thereafter took adverse employment action against the plaintiff;
there was a causal connection between the protected activity and the adverse employment action.

See Ford v. General Motors Corp., 2002 U.S. App. LEXIS 20501 (6th Cir. 2002); Morris v. Oldham County Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000).

Once an employee has established a prima facie case, the burden of production of evidence shifts to the employer to articulate some legitimate, nondiscriminatory reason for its actions. Once the employer meets this burden of production, the plaintiff, who bears the burden of persuasion throughout the process, must then demonstrate the the employer's proffered reason was false. Id.

The prima facie case of unlawful retaliation under the Tennessee Human Rights Act is identical. Austin v. Shelby County Government, 3 S.W. 3d 474, 480 (Tenn. App. 1999); see also Mountjoy v. City of Chattanooga, 2002 Tenn. App. LEXIS 277 (E.S., decided April 23, 2002).

(a) What does "engaging in a protected activity" mean?

For purposes of a retaliation claim under Title VII, 42 U.S.C. § 2000e-3 provides, in relevant part, that "it shall be an unlawful employment practice for an employer to discriminate against any of his employees… because [the employee] has opposed any practice made an unlawful employment practice by this title, or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title." Thus, there are two anti-retaliation provisions in the statute, frequently referred to as the "opposition" and the "participation" clauses.

The "participation" clause is relatively straightforward. It protects those who participate in the process of vindicating civil rights under Title VII, such as by filing a charge with the EEOC or filing a lawsuit.

The "opposition" clause is a little more difficult, and the federal courts sometimes disagree about what "opposition" activities are protected. If an employee makes a good faith complaint to the employer that his or her rights are being violated under Title VII, then even if the employee is wrong, he or she cannot be subjected to an adverse employment action because of raising the complaint. See Johnson v. University of Cincinnati, 215 F.3d 561, 579 (6th Cir. 2000), cert. denied, 531 U.S. 1052 (2000). The EEOC has identified several examples of what it would consider protected "opposition," including complaining to anyone (management, unions, other employees, or newspapers) about allegedly unlawful practices; refusing to obey an order because the worker thinks it is unlawful under Title VII; and opposing unlawful acts by persons other than the employer – e.g., former employers, union, and co-workers. EEOC Compliance Manual, (CCH) P 8006. The EEOC has qualified the scope of the opposition clause by noting that the manner of opposition must be reasonable, and that the opposition be based on "a reasonable and good faith belief that the opposed practices were unlawful." Id. In other words, a violation of Title VII's retaliation provision can be found whether or not the challenged practice ultimately is found to be unlawful. Id. Moreover, the person claiming retaliation need not be the person who engaged in the opposition, such that "Title VII . . . prohibits retaliation against someone so closely related to or associated with the person exercising his or her statutory rights that it would discourage that person from pursuing those rights." Id.

Issues can arise when an employee protests too little – does a vague complaint about generalized mistreatment or unfair decisions qualify? Issues can also arise when an employee protests too much – if the employee's protesting conduct is considered wholly inappropriate or unnecessarily injurious to the employer's interests, the statutory protection may be lost. For example, if an employee removes and photocopies personnel materials from her supervisor's desk, then sends them to a woman who recently resigned complaining of sexual harassment, one court has held that would not be protected opposition. Laughlin v. Mreto Washington Airports Authority, 149 F.3d 253, 259-60 (4th Cir. 1998).

(b) What is an "adverse employment action"?

The Sixth Circuit has stated that the "adverse employment action" under a Title VII retaliation claim must be "materially adverse," and it has explained:

A materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidence by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation. This Court has consistently held that de minimis employment actions are not materially adverse and, thus, not actionable. [Internal citation omitted].

Ford v. General Motors Corp., supra.

Because there are no bright line tests, and because this question is decided on a case-by-case basis, employers frequently cannot be sure whether they have taken a "materially adverse employment action" until a court rules on the issue.

In one recent case, the Sixth Circuit held that a transfer to a more demanding job was not a materially adverse employment action for purposes of Title VII retaliation. The employee was originally hired to do maintenance work, but then moved to a forklift operator position which was less physically demanding. She complained of sexual harassment, and she was eventually moved back to the maintenance position, which was more physically demanding. She sued for retaliation, and the Sixth Circuit found that no unlawful retaliation had occurred, because the transfer was "lateral" and was to the position the employee was originally hired to do. Shortly after issuing this opinion, the Sixth Circuit vacated it and granted a rehearing, which is presently pending at the time these materials are being prepared. Hopefully the Sixth Circuit will further clarify this issue. See White v. Burlington Norther & Santa Fe Railway Co., 310 F.3d 443 (6th Cir. 2002), vacated and reh'g granted (February 11, 2003).

In one recent case from another Circuit, a court held that a negative performace evaluation could be a materially adverse employment action for purposes of Title VII retaliation claims. Bostic v. AT & T of the Virgin Islands, 166 F. Supp. 2d 350 (D. Virgin Islands, 2001). In that case, the district court held that putting a negative performance evaluation in a personnel file could materially affect whether the employee might receive future raises or promotions, and the negative evaluation could have the effect of deterring the employee from opposing unlawful practices. But see Silk v. City of Chicago, 194 F. 3d 788 (7th Cir. 1998)(filed under anti-retaliation provisions of Americans with Disabilities Act, finding lower employee performance evaluations were not materially adverse job actions).

Some cases have addressed whether criticism by a supervisor may rise to the level of a materially adverse employment action. For example, in Sanchez v. Denver Public Schools, 164 F. 3d 527, 533 (10th Cir. 1998), requiring the plaintiff to bring a doctor's note when she was sick, threats to write her up for insubordination, and threats to put her on a plan for improvement did not rise to the level of materially adverse employment actions, because unsubstantiated oral reprimands and unnecessary derogatory comments do not rise to the required level unless there is also evidence they had some impact on the plaintiff's employment status. But see Moore v. Kuka Welding Systems, 171 F.3d 1073, 1080 (6th Cir. 1999)(when viewed as a whole, the increased receipt of disciplinary write-ups, unwarranted criticism and isolations from other employees did support a jury's finding of retaliation).

In Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027 (7th Cir. 1998), the plaintiff claimed that she was ostracized by fellow employees after making complaints, but the court found that no material harm was done and her claim failed. In Drake v. Minnesota Mining & Mfg. Co., 134 F. 3d 878 (7th Cir. 1998), the court found that shunning by fellow employees was not a materially adverse employment action. But see Knox v. Indiana, 93 F.3d 1327 (7th Cir. 1996)(allegations that the plaintiff's co-workers retaliated against her by making insults and demeaning statements about her and letting it be known that they intended to make her life "hell" and "to get her" sufficed as adverse employment actions).

Finally, sometimes employees claim that they are retaliated against by means which affect their future employment opportunities, such as by adverse job references or "blackballing." See, e.g. Hashimoto v. Dalton, 118 F.3d 671 (9th Cir. 1997), cert. denied, 118 S. Ct. 1803 (1998)(a retaliatory negative job reference violates Title VII even if it causes no damage); Ruedlinger v. Jarrett, 106 F. 3d 212 (7th Cir. 1997)(materially adverse action found where former employer contacted plaintiff's subsequent employer and divulged information which was supposed to remain confidential under a negotiated settlement agreement).

(c) How to prove the required "causal connection"?

Like most types of discriminatory conduct, retaliation is difficult to establish by direct proof. Therefore, plaintiffs must usually prove the required "causal connection" by circumstantial evidence from which unlawful retaliation can be inferred. Most frequently plaintiffs argue that retaliation can be inferred because of: (1) the "temporal proximity," or short lapse of time, between the complaint and the adverse act; or (2) a pattern of antagonism linking the complaint and the adverse action.

The law in this area reflects two fundamental, common sense approaches: (1) time heals all wounds; and (2) retaliators retaliate, they do not forbear. In other words, the longer the time between the employer learning of the plaintiff's complaint or other conduct and the employer's taking of an adverse employment action, the less an unlawful retaliatory motive can be inferred. Conversely, the shorter the time, the better the chance for the employee to make the inference successfully.

In Clark County School District v. Breeden, 532 U.S. 268, 121 S. Ct. 1508, 149 L. Ed 2d 509 (2001), the Supreme Court considered both a sexual harassment claim and a retaliation claim under Title VII. In that case, the plaintiff claimed that during a review of job applicant files, a male co-worker made a sexually explicit comment. She claimed that when reading a psychological report regarding a job applicant, it disclosed that the applicant had once stated "I hear that making love to you is like making love to the Grand Canyon." When the plaintiff said she did not understand what that meant, her male co-worker said, "Well, I'll tell you later," then chuckled. She complained to her supervisor and others about the comment, and she later filed a charge of discrimination (i.e., she engaged in both "opposition" and "participation"). She claimed that she was thereafter punished by being transferred.

In Breeden, the Supreme Court noted that plaintiff's entire proof of the required causal connection consisted of the "temporal proximity" between her filing of a complaint and her supervisor's disclosure to plaintiff's union representative that he was contemplating transferring the plaintiff to a different position. However, the proof showed that the employer was not served with the complaint until one day after the supervisor made the statement. The plaintiff then tried to argue that the employer's receipt of notice of her right-to-sue letter preceded the decision, but the Court held that this was not a "protected activity" by the plaintiff, particularly since she had no control over it. The Court stated that employers need not suspend previously planned actions upon discovering that a Title VII suit has been filed, and there is no "causality" between consummation of a previously contemplated job action and Title VII charge which was first learned of subsequently. Further, regarding the right-to-sue letter, the Court noted that if that were deemed the trigger of the employer's notice of the employee's complaint, then that was known almost two years prior to the job transfer. The Court reiterated that if "temporal proximity" is used to establish the required causal connection, then that temporal proximity must be "very close," and something the employer learned of twenty months before the alleged adverse decision showed "no causality at all."

In other words, in Breeden the Supreme Court followed the common sense rule – if the employer had been motivated to retaliate, it would have done so when it first received notice that the plaintiff had filed a charge, not two years later when it learned that she had filed the lawsuit.

In the Sixth Circuit, some cases have stated that mere "temporal proximity," standing alone, would not be sufficient to establish the required causal connection. Instead, if a plaintiff is relying upon temporal proximity as part of his or her circumstantial evidence, he or she will also need to come forward with something more. See Cooper v. City of North Olmstead, 795 F. 2d 1265 (6th Cir. 1986)(rejecting the idea that temporal proximity is enough, in and of itself); Parnell v. West, 1997 U.S. App. LEXIS 12023 (6th Cir. 1997)("temporal proximity alone will not support an inference of retaliatory discrimination when there is no other compelling evidence"). More recently, in Nguyen v. City of Cleveland, 229 F. 3d 559, 567 (6th Cir. 2000), the Sixth Circuit seemed to backtrack somewhat on this position, noting: "[W]hile there may be circumstances where evidence of temporal proximity alone would be sufficient to support that inference, we do not hesitate to say that they have not been presented in this case."

If the decision-maker is shown not to have known that the plaintiff had engaged in protected conduct at the time adverse decisions were made, then the plaintiff cannot establish a causal connection. See Fenton v. Hisan, Inc., 174 F.3d 827 (6th Cir. 1999). Likewise, where an employer has done "nice things" for the employee after he or she engaged in the protected activity, but subsequently terminated the employee, the "nice things" could defeat the inference of unlawful retaliation. See Coffman v. Tracker Marine, L.P., 141 F. 3d 1241 (8th Cir. 1998)(after the employee made a sexual harassment complaint, the employer rectified the situation, gave her a favorable performance evaluation, and tried to prevent her from resigning; her claims of retaliation therefore failed).

2. Tennessee Common Law Retaliatory Discharge and "Whistleblower" Statute.

Apart from retaliation which is prohibited by Title VII and the Tennessee Human Rights Act, Tennessee employers must also be aware of common law claims for unlawful retaliation in violation of public policy, commonly referred to as "retaliatory discharge." Tennessee also has a statutory "whistleblower" statute.

(a) Retaliatory discharge for filing a workers' comp claim. Tennessee public policy favors permitting injured employees to receive the benefits to which they may be entitled under workers' compensation law freely and without fear of reprisal. Under Tennessee law, an employer may discharge an at-will employee with or without cause, but not on account of the employee's assertion of a workers' compensation claim. Anderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn. 1993). The elements of a prima facie case of this type of retaliatory discharge are:

the plaintiff was an employee of the defendant at the time of the injury;
the plaintiff made a claim against the defendant for workers' compensation benefits;
the defendant terminated the plaintiff's employment
the claim for workers' compensation benefits was a substantial factor in the employer's motivation to terminate the employee's employment.

Id. at 558.

A "claim" for workers' compensation benefits need not be a formal claim nor the filing of a lawsuit. Instead, once an employer has notice that an employee has been injured on the job and requires medical attention, the employer has an obligation to furnish medical treatment and a panel of physicians, whether the employee asks for such items or not. At that point, if the employer terminates the employment on account of this knowledge, the "claim" element is met. See Elliott v. The Blakeford at Green Hills Corp., 2000 Tenn. App. LEXIS 806, 17 BNA IER Cas 129.

The burden of proof in a retaliatory discharge case is on the plaintiff to produce some evidence of retaliatory motive. In order to establish the fourth, or "substantial factor" element of the prima facie case, the employee must present either direct evidence of the necessary causal link, or he or she may introduce circumstantial evidence of the causal link. However, proof by circumstantial evidence must be "compelling." Reed v. Alamo Rent-A-Car, Inc., 4 S.W.3d 677, 685 (Tenn. App. 1999).

Tennessee courts have recognized that "direct evidence of such motive is hard to come by," and thus courts "usually rely upon inferences that arise from indirect evidence." Elliott, 2000 Tenn. App. LEXIS at * 16. In Mason v. Seaton, 942 S.W.2d 470, 474 (Tenn. 1997), the Supreme Court noted in the context of a retaliatory discharge "whistleblower" case:

Evidence of that motivation is largely within the possession of the defendants. Consequently, where, as in this case, the plaintiff's claim for causation is consistent with the facts and circumstances shown, and the employer chooses to offer no explanation of the employee's discharge, fairness requires that any credible evidence from which the trier of fact could infer causation will defeat the motion for summary judgment.

An employee's "subjective beliefs and speculations about the reasons for her discharge" do not establish the necessary causal link. Reed, 4 S.W.3d at 685. In addition, the mere proximity in time between the employee making a claim for workers' compensation benefits and her termination is insufficient, in itself, to establish a prima facie case. See Birchett v. Nashville Co., Inc., 2000 Tenn. App. LEXIS 322, at * 7.

Once the employee establishes a prima facie case of retaliation, the burden shifts to the employer to show a "legitimate, non-pretextual, non-retaliatory reason for the employee's discharge." Anderson, 857 S.W.2d at 559. Such legitimate reasons could include termination on account of excessive absenteeism, tardiness, lack of skill, lack of truthfulness, or the employee's physical inability to do the job. Id.

When an employer presents a legitimate, non-discriminatory reason for the discharge, the burden then shifts back to the employee to show that the employer's explanation is pretextual or not worthy of belief. See Speakman v. ADA Ferrell Garden Apartments, 2000 Tenn. App. LEXIS 344, and cases cited therein. In doing so, the employee must present specific admissible facts which realistically challenge the defendant's stated reasons. Id.

If the employee tenders proof calling into disbelief the employer's proffered reasons for the termination, the trier of fact may find a retaliatory discharge based upon that disbelief of the employer's reasons, without any additional proof offered by the employee. See Smith v. Bridgestone/Firestone, Inc., 2 S.W.3d 197 (Tenn. App. 1999)(discussing Tennessee retaliatory discharge claims and the adoption of federal case law rules regarding the burden-shifting analysis). See also Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 L. Ed. 2d 105, 120 S. Ct. 2097 (2000)(clarifying that under federal discrimination law, meeting the prima facie case, combined with sufficient evidence for a reasonable factfinder to reject the employer's non-discriminatory explanation for its decision, is adequate to sustain a finding of liability for intentional discrimination).

In Hayes v. Computer Sciences Corp., 2003 Tenn. App. LEXIS 23 (M.S., decided January 14, 2003), the Court of Appeals held that where an employee is terminated because he had previously filed a workers' comp claim against a former employer, the employee still had a viable cause of action against the terminating employer.

(b) Retaliatory discharge related to other public policy concerns. Apart from terminations substantially motivated by the employee's filing of a workers' compensation claim, Tennessee also recognizes that when an employee is terminated for other reasons which violate clear public policy, the employee has a cause of action.

In Crews v. Buckman Laboratories International, Inc., 78 S.W.3d 852 (Tenn. 2002), the Tennessee Supreme Court held that an in-house attorney could sue for retaliatory discharge, where she was fired for reporting the unauthorized practice of law by her employer's general counsel. In so holding the Court noted:

In Tennessee, the elements of a typical common-law retaliatory discharge claim are as follows: (1) that an employment-at-will relationship existed; (2) that the employee was discharged; (3) that the reason for the discharge was that the employee attempted to exercise a statutory or constitutional right, or for any other reason which violates a clear public policy evidenced by an unambiguous constitutional, statutory, or regulatory provision; and (4) that a substantial factor in the employer's decision to discharge the employee was the employee's exercise of protected rights or compliance with clear public policy.

78 S.W.3d at 862.

In Sloan v. Tri-County Electric Membership Corp., 2002 Tenn. App. LEXIS 109 (M.S., decided February 7, 2002), the employee claimed that she was forced to resign pursuant to the employer's anti-nepotism policy, after she married a co-worker. She claimed that the right to marry is a fundamental right favored by the State's public policy. The employer argued that enforcing the anti-nepotism policy did not infringe upon the employee's right to marry whom she pleased. The Court of Appeals agreed with the employer and affirmed the dismissal of her claims by the trial court. The Court agreed that the employee was not prevented from being married, and therefore she was not deprived of her fundamental rights.

Finally, the Tennessee Supreme Court has clarified that "public policy" retaliatory discharge is not subsumed in or preempted by the statutory "whistleblower" cause of action (discussed below). In Guy v. Mutual of Omaha Ins. Co., 79 S.W.3d 528 (Tenn. 2002), the employee, who worked for an insurance company, reported an incident involving an insurance agent to the Tennessee insurance commissioner, but he did not report the incident to his employer for another eight months. Several months after he did report the incident to his employer, he was fired, and he thereafter sued for retaliatory discharge. The employer moved for summary judgment on the grounds that the employee's claim was really one for "whistleblowing," or reporting illegal activity, which is limited to the statutory cause of action (below), and that the employee could not prove that the sole reason for his discharge was his report, as required by the statute. The Supreme Court found that Tennessee recognizes two distinct causes of action for retaliatory discharge on account of "whistleblowing" or reporting unlawful activities – the statutory claim, and a common law claim. The statutory claim is not the exclusive remedy. This is significant because, under the statutory claim, the employee must prove that the "sole reason" for his discharge was for blowing the whistle, while under the common law claim he need only prove that blowing the whistle was a "substantial factor" in the termination. The Court noted that the legislature could have made clear that the statutory claim was the only viable claim, but it did not do so.

(c) The Tennessee "whistleblower" statute. Finally, as alluded to above, Tennessee does have a "whistleblower" statute, located at Tenn. Code Ann. § 50-1-304. This statute states that "no employee shall be discharged or terminated solely for refusing to participate in, or refusing to remain silent about, illegal activities." Historically it has proved extremely difficult for employers to prevail under this statute, primarily because of the difficulty in proving that reporting the illegal activity was the "sole" reason behind the discharge.

As discussed above, the Tennessee Supreme Court has clarified that Tennessee recognizes both a statutory and a common law "whistleblower" cause of action, and under the common law claim, the employee need only prove that the whistleblowing was a "substantial factor" in the termination decision. Guy v. Mutual of Omaha Ins. Co., 79 S.W.3d 528 (Tenn. 2002).

In Foster v. Colonial Development, Inc., 2002 Tenn. App. LEXIS 108 (E.S., decided February 6, 2002), for example, the plaintiffs claimed that they were terminated for objecting to and reporting fraudulent practices involving billing the same nursing home beds to both Medicare and TennCare. The employer claimed that they were terminated for failing to clock out for lunch. The trial court granted summary judgment to the employer, and the Court of Appeals affirmed, finding that the plaintiffs were unable to meet their burden of proof.

In Moore v. Averitt Express, Inc., 2002 Tenn. App. LEXIS 725 (M.S., decided October 11, 2002), a unique situation was presented. The employee had only recently begun to work for Averitt Express when he was fired. The reason was that he had made statements alleging illegal conduct by state officials following his previous employment with the State of Tennessee. The statements were made in a television interview, and he alleged that state officials had used state aircraft for personal use. He had made no complaint or allegation regarding Averitt Express, but the company terminated his employment because of "confidentiality concerns," i.e., he had publicly discussed what the company's clients would consider private matters. He sued under the whistleblower statute, as well as for common law retaliatory discharge. The trial court dismissed his claims, and the Court of Appeals affirmed, holding that, taking into account the policies behind these claims, to be actionable the threat of being fired must have existed at the time the employee reported the illegal act. Since the employee was fired for what he had "reported" regarding another employer, which reports were made before he was hired by Averitt Express, then he was not in the "protected class" of people under this claim.

B. PROTECTED ACTIVITY

What is a "protected activity" is discussed in detail in section A ("Elements of a Prima Facie Case of Retaliation"), subsection 1 ("Retaliation Under Title VII and the Tennessee Human Rights Act"), sub-subsection "a" ("What Does Engaging in a Protected Activity Mean?"), above.

C. PROXIMITY IN TIME

"Proximity in time" as circumstantial evidence of retaliation is discussed in detail in section A ("Elements of a Prima Facie Case of Retaliation"), subsection 1 ("Retaliation Under Title VII and the Tennessee Human Rights Act"), sub-subsection "c" ("How to Prove the Required Causal Connection"), above.

D. TIPS TO AVOID RETALIATION CLAIMS

To avoid retaliation claims under Title VII and other federal discrimination laws, as well as under the Tennessee Human Rights Act, employers should:

Adopt a strong anti-retaliation policy. This should be an integral part of the employer's discrimination and harassment policies. All employees should be told that retaliation against any employee who makes a discrimination complaint is a serious violation which will not be tolerated. The policy should broadly define retaliation to include any adverse action taken against any employee who has engaged in a protected activity. A complaint procedure should be explained, which should be easy to use and which would circumvent the alleged retaliator. Most importantly, as with any employment policy, this policy should be even-handedly applied at all levels of the company.

Train managers and supervisors. All individuals having authority to discipline, discharge, layoff, demote or promote should be trained as to what the company's policies and complaint procedures are, as well as what could constitute unlawful retaliation. Examples of "do's" and "don'ts" would be useful.

Remove the authority of any alleged discriminator to make employment decisions concerning the accuser. If possible, separate any accused supervisor and the accusing employee. Require reviews of employment decisions concerning the accusing employee by higher officials. Of course, this could be problematic, depending upon the size of the employer and the identity of the accused discriminator.

Use performance evaluations. Carefully document all performance-related matters concerning the complainant. It would be advisable to involve the company's legal department or outside counsel. Keep the employee regularly advised of how his performance is going, to avoid surprises. However, avoid merely perfunctory evaluations which do not really tell the employee how he is doing. Instruct supervisors and managers who complete evaluations (not just evaluations of a complainant after a discrimination charge, but all employee evaluations) to not merely check "good" or "satisfactory" without giving thought to whether those terms are correct.

Explain any changes to the employee. If it is necessary to make any significant changes in the terms or conditions of employment of a complainant, explain the reasons to the employee and, if possible, get him or her to sign a consent or acknowledgment.

Respond to complaints of retaliation. Promptly investigate any allegations, but also be thorough. Consider employing a neutral investigator. The investigation should follow the format and procedures for investigations of other types of discrimination, such as sexual harassment. If remedial action is required, take it, and make it effective. Monitor the situation periodically even after issues have been resolved, to prevent a recurrence.

View all articles by Bob E. Lype