This & That Tuesday 15.6.9
"This & That" Tuesday: Retaliation, Race Discrimination
June 9, 2015
Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.
Announcements
You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.
Upcoming Events
June 9, 2015
South Pasadena Rotary Club
The New Paid Sick Leave Act
Information can be found on my website.
June 23, 2015
Irwindale Chamber of Commerce
The New Paid Sick Leave Act
Information can be found on my website.
July 15, 2015
West Inland Empire Employer Advisory Council
Coaching to Improve Performance
Information can be found on my website.
July 22, 2015
Industry Manufacturers Council
HR4U 101 Full-day Workshop
Information can be found on my website.
Avoiding Employee Retaliation Claims
The EEOC reported that the number of claims alleging unlawful retaliation has skyrocketed since 1997, from 22.7% to 41.1% of all claims filed. Retaliation is currently the most common basis for complaints filed with the agency, outdistancing both race (35.3%) and sex (29.5%) discrimination.
Legislatures and courts have also significantly broadened the scope of persons protected against retaliation, lowered the burden for establishing claims, and expanded available damages. For example, the California Legislature has expanded whistleblower retaliation protections, to protect employees from employers engaging in “unfair immigration-related practices” or threatening the immigration status of an employee’s family members.
The legal structure of retaliation claims makes possible a much higher success rate for plaintiffs. In a typical employment discrimination case, plaintiffs must persuade a fact-finder that the manager involved in the adverse employment decision acted because of a bias against the plaintiff’s protected characteristic (e.g., race, gender, sexual orientation, etc.) Jurors may reject such a claim of discriminatory motive, but at the same time may accept the argument that the plaintiff experienced negative treatment – retaliation – after reporting or complaining of the discrimination or harassment.
Another reason retaliation claims are easier to prove and win may be the legal elements of the claim. An employee must only prove:
(1) a protected activity,
(2) an adverse employment action, and
(3) a causal connection between the protected activity and the adverse action.
Retaliation claims are unlike discrimination claims, and potentially are more dangerous, because the plaintiff need not establish that the conduct opposed was actually unlawful. The plaintiff usually need establish only a “good faith, reasonable belief” that the employment action was unlawful.
Employers seeking to reduce risk can and should take a number of preventive measures. An anti-retaliation policy is a good starting point. Employers with equal employment opportunity and anti-harassment policies should ensure they specifically address retaliation protections. A policy against retaliation is ineffective unless it includes ways for employees to safely raise concerns without retribution. Employers should implement open door policies, complaint hotlines, and other reporting procedures that ensure reports reach the right people, and that employees are protected from retaliation.
Employers should train managers and supervisors that retaliation against employees who raise concern is unacceptable. Senior management must take retaliation seriously and discipline managers who take retribution against “whistleblowers.” Training should also include how to respond when a complaint is received. Employers should document all training sessions to show the steps taken to affirmatively prevent retaliatory conduct.
Employers should also document all actions taken regarding retaliation complaints and should monitor employees who raise concerns to ensure they are not experiencing negative treatment.
White Cop Wins $1.35M in Racial-Bias Suit
A Long Island, NY cop was awarded $1.35 million after winning a racial-discrimination lawsuit against the Village of Freeport that claimed he was passed up for a promotion to police chief because he is white.
A federal jury sided with Lt. Christopher Barrella’s claim that ex-Freeport Mayor Andrew Hardwick’s decision to appoint a less-qualified Hispanic lieutenant as the town’s top cop was racially motivated.
Barrella’s attorneys had argued that Hardwick, who is black, deliberately demoted several white officers in the department and forced others into retirement after being elected mayor, replacing them with less-qualified black and Hispanic candidates.
Barrella, who has a master’s degree in public administration and a law degree, claimed the mayor snubbed him for the top job in favor of then-Lt. Miguel Bermudez — who only has a high-school diploma and who was one of the most junior lieutenants on the job.
The 23-year veteran also finished with the highest score on the police chief’s exam, while Bermudez came in third. Still, Hardwick appointed Bermudez without even reviewing Barrella’s impressive resume — which included special training at the FBI academy — or interviewing him for the job.
The court found that a jury could reasonably conclude that Hardwick’s decision to promote Bermudez, and his concomitant failure to consider the Plaintiff for any command Staff position, resulted from discrimination on the basis of race.
Factoids
- In 2012, men over 65 in workforce was 21.3% (up from 17.6% in 1990), for women it was 13.4% (up from 8.4%)
- The above group combined account for 13.7% of the total workforce (43.1 million people).
- 1/3 of employers plan to give bonuses to employees who failed to meet expectations!
- Only 34% of workers aspire to leadership positions.
Quote of the Blog
“When you reach the end of your rope, tie a knot in it and hand on.”
~Thomas Jefferson~