New Retaliation Trends

In Denver on April 24, 2009, a U.S. District Court jury awarded a

former United Airline ramp-services supervisor $3 million after finding that

the airline retaliated against her because she complained of sex

discrimination. Jennifer McInerney was terminated from her job at United

in March 2006 after 12 years at the company. While United prevailed on the

discrimination claim, they lost on retaliation. McInerney had asked for extra

time off and an alternative job when she became pregnant with her son who

was then born premature. While she used all her regular time off, she was

denied additional leave without pay after her son was born disabled.

McInerney claimed similar requests were granted to male ramp supervisors.

When she was instructed to return to work and didn’t, she was terminated.

This case illustrates something we always talk about in our

workshops: retaliation claims are easy to make and easy to win especially if

the plaintiff loses the underlying discrimination complaint. You need to

make sure that your managers are trained in the subtleties of retaliation once

a complaint has been filed. It’s human nature to change your behavior once

someone has complained about you, leading to exactly this kind of

retaliation claim.

They are still startlingly common, unfortunately. The U.S. Equal

Employment Opportunity Commission (EEOC) received a total of 82,792

private sector discrimination charge filings last fiscal year. This is the

highest volume of incoming charges since 2002 and the largest annual

increase (9 percent) since the early 1990s. The EEOC recovered $345

million in monetary relief for job bias victims.

In 2007, allegations of discrimination based on race, retaliation, and

sex were the most frequently filed charges, continuing a long-term trend, but

nearly all major charge categories showed double digit percentage increases

from the prior year. The agency report speculated that the jump in charge

filings may be due to a combination of factors, including greater awareness

of the law, charging economic conditions, and increased diversity and

demographic shifts in the labor force.

In 2007, retaliation was the second highest charge category (behind

race) surpassing sex-based charges in total filings with EEOC offices

nationwide. Since the EEOC became operational in 1965, race has been the

most frequently filed charge. Issues such as pregnancy discrimination and

sexual harassment also trended upward at both the EEOC and state and local

Fair Employment Practices Agencies.

For example, during 2007, pregnancy charges surged to a record high

of 5,587, up 14 percent. Sexual harassment filings increased for the first time

since 2000, numbering 12,510, up 4 percent. Additionally, a record 16

percent of sexual harassment charges were filed by men, up from 9 percent

in the early 1990s.

Age cases had the largest annual increase since 2002, up 15 percent.

In general, age discrimination is the fastest growing class of cases in the

federal courts these days. Why? All of the baby boomers, of course. They’re

all over the age of forty and accustomed to asserting their rights.

Last but not least, the report indicated that religion was up to record

high levels, doubled since 1992.

These statistics don’t even reflect the number of private suits that have

been filed but those numbers are also at historic highs. What’s apparent from

these statistics is that you have, unfortunately, a good chance of someone

complaining about these matters. Being prepared for your first (or next) such

complaint is key.

It helps to talk to all your employees about discrimination before they

come to you with a complaint. At a minimum, review your company’s

policies about discrimination and ethics codes at least once a year. If you

have an inside or outside training department, bring them in to do training

reviews at least once every two years. If you do, you’ll gradually reduce the

amount of claims, as well as assuring your employees that you take these

matters seriously.

If you do bring someone in to do training, introduce the instructors

yourself and say something like this: “As you know, these are important

matters for our organization. We take complaints about discrimination,

harassment, ethics or safety violations very seriously. I want you all to be

aware of what acceptable behavior is in our workplace. Please know that I’m

available to talk about any concerns you might have about these matters.”

It might seem counter-intuitive for you to actually encourage people

to come to you with complaints. You might even feel that you already have

enough employee complaints! Yet believe me, complaints are the good

news. If employees perceive problems in any of these areas, you want them

to come to you first, not go over your head or to an outside agency. You

don’t want the first you learn about a legal problem to be the subpoena that

lands on your desk!

If you have these kinds of sessions with your employees on a regular

basis, they’ll be more likely to trust you when they do have a complaint, to

come to you first and to be more reasonable in working out the problem.

Create an environment where you’re safe to confront.

The investment you make in training is small compared to a $3

million judgment, not to mention the loss of your reputation and the internal

time and energy it takes to respond to complaints.

Interestingly, the last three complaints I’ve investigated have been

brought by men. Two were alleged discrimination complaints; one was

other kinds of misconduct. I think this shows that it’s not enough to assume

that training on the traditional kinds of sexual harassment will serve you.

Copyright © 2009. No part of this material may be reproduced without written permission from Lynne

Eisaguirre, Workplaces That Work, 303-216-1020, Lynne@Workplacesthatwork.com,

www.workplacesthatwork.com