By Cynthia A. Bremer, Monique Gougisha Doucette, W. Scott Hardy, and Hardy R. Murphy, Ogletree, Deakins, Nash, Smoak, & Stewart, P.C.
Introduction
Legal protections for employees who report illegal misconduct by their employers, or "blow the whistle," have increased over the past several years. There are currently more than 20 federal employment laws that contain specific whistle-blower protections, as well as hundreds if not thousands of different state employment laws. An employee or former employee may file a complaint if he or she believes that an employer retaliated against him or her by taking unfavorable personnel action because of the employee's protected activity. Due to the potential of costly civil liability, employers should be proactive in preventing and responding to whistle-blower retaliation claims by encouraging a positive compliance culture, conducting effective investigations, and instituting some best practices to avoid and, if necessary, defend against claims of retaliation.
Title VII
Title VII of the Civil Rights Act of 1964 is just one of the many laws prohibiting retaliation. Title VII makes it "an unlawful employment practice for an employer to discriminate against any of his employees... because he has opposed any practice made an unlawful employment practice... or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing..." The chief question in many retaliation cases is whether an employee has actually engaged in "protected activity" giving rise to protection from retaliation.
The concept of "Protected Activity" focuses on two main clauses: opposition and participation. The distinction between the two is important because the level of statutory protection can differ. The "opposition" clause can provide a broader protection than the "participation" clause by including conduct outside Equal Employment Opportunity Commission (EEOC) charges and court proceedings such as informal, internal discrimination complaints. Unlike the "participation" clause, protected "opposition" must be based on the employee's reasonable, good-faith belief that they are opposing an unlawful employment practice.
In addition to the statutory protection differences, there are practical differences in employee protection arising from the two clauses. Employees engaged in activities in "opposition" to an allegedly unlawful practice may be terminated if their complaint is not based on a good faith, reasonable belief that the employer's activity was prohibited by statute and brought in a reasonable manner. This includes complaints of general workplace activity not necessarily related to Title VII discrimination, complaints related to gratuitous disclosure of a company's confidential information, and complaints by employees who refuse to perform reasonably assigned work. This may even include complaints where an employer has a good faith belief that comments made in the course of its internal investigation of a complaint were false and fabricated. On the other hand, employees who are actively "participating" in the administrative (e.g., EEOC) or judicial (in court) process may not generally be terminated even if their participation involves allegations made falsely or in bad faith or gratuitous disclosures of confidential company information.
Get Your House In Order
1. Written Policies
If employees believe that their employer has effective internal mechanisms for raising concerns about perceived improprieties, they will be more likely to keep their concerns internal to the company. Meaningful internal mechanisms also help deter an atmosphere of distrust. Management needs to demonstrate to employees its insistence upon compliance with applicable law, which can most effectively be done by establishing written policies expressly requiring their employees to comply with any applicable laws, and explaining in detail how to report a violation if they see one. If an employer is silent regarding its insistence on compliance with the law, employees could construe this as a conscious decision to discourage compliance.
Employers may want to establish a means for employees to seek informal clarification of its policies through an ombudsman program so that employees are not confused as to whether particular conduct is improper or not. It is also advisable for employers to provide multiple channels for employee disclosures, because some employees will find certain channels more effective than others. Employers' policies should always demonstrate an unequivocal commitment to a retaliation-free environment. Allowing employees to report anonymously is also an effective tool for increasing participation and easing concerns with retaliation.
2. Training and Communication
If an employer publicizes its policy and emphasizes its commitment to such policy, employees are much more likely to be persuaded that the policy will be enforced. Employers should widely communicate the company's commitment to its complaint policy and each person's obligation under it. Employers should also designate high-level executive(s) responsible for the implementation and oversight of the complaint and investigation process and communicate it- within the policy, through training, and in other corporate communications. It is also advisable to train employees on the policy and have them sign acknowledgements that they are aware of the program and how it works. An employer may want to take an additional step and provide ethics training for its employees. Such training may aid in prevention of unfounded claims and will demonstrate that the employer takes ethical problems seriously. To prevent retaliation and whistle-blowing claims that result from a lack of communication within an organization, make it a habit to remind employees regularly about the policies in place through e-mails, newsletters, posters, etc.
3. Consider an Internal "Bounty" Program
Rewarding reporting as a means to encourage employees to step forward internally can be a powerful tool- and it does not have to revolve around money, although it can. Intangibles such as publicly praising employees who do come forward with concerns that result in positive change for the organization can be very meaningful, while encouraging others to do the same. Also, do not underestimate the power of a personal telephone call from the Chief Executive Officer (CEO), a write-up in the company newsletter, or a broadcast e-mail. Essentially, advertise the successes of your complaint procedure and compliance program- and the people who make it successful.
Successfully Avoiding Claims of Retaliation
1. The EEOC
The Equal Employment Opportunity Commission (EEOC) aggressively prosecutes retaliation claims. Recently, the EEOC reported that retaliation charges filed in fiscal year 2016 numbered a record high, surpassing sex, disability, and race charges. Retaliation charges accounted for nearly 46 percent of all charges filed with the EEOC and constituted the highest category for the seventh year in a row. These statistics make it even more important to make sure employers are in front of these issues.
On August 29, 2016, the EEOC issued the EEOC Enforcement Guidance on Retaliation and Related Issues, available at https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm. The 2016 Guidance replaced the 1998 Guidance. The 2016 Guidance describes the EEOC's position on the law (including the case law, some of which is described above) and available remedies under the law. The Guidance also provides substantive examples of conduct it believes constitutes actionable retaliation. Of particular importance to employers, the new Guidance outlines what the EEOC refers to as five "promising practices" for employers to consider, implement, and enforce. These five "promising practices" include: (1) written policies; (2) training; (3) anti-retaliation advice and individualized support for employees, managers, and supervisors; (4) proactive follow-up; and (5) review of employment actions to ensure EEO compliance. In addition to the Enforcement Guidance, the EEOC published a helpful Q&A document, available at https://www.eeoc.gov/laws/guidance/retaliation-qa.cfm.
2. Avoiding Retaliation Claims
Even with a positive compliance culture and effective internal investigations, employees will still, at times, pursue retaliation claims. Employees that have blown the whistle on alleged misconduct are not shielded from discipline, layoffs, or other adverse actions. In order to avoiding claims of retaliation, employers should take great care after an investigation in dealing with issues that arose.
There are several ways in which an employer can try to minimize the risk of retaliation claims. One way is by completing a thorough investigation. Upon receipt of a complaint of workplace discrimination or harassment, an employer should act promptly, reasonably, and effectively to investigate that complaint. The employer should have in place a set, reasoned investigation protocol that minimizes the risks of later retaliation claims.
Employers should not allow the recommendations coming from a well-conducted investigation to go unaddressed- if any are not implemented, record why. Always approach discipline or discharge of a known whistle-blower with appropriate caution; ensure the business reasons for the decision are well supported and documented and that the decision-maker is as insulated as possible from claims of retaliation through independent review. If a higher-level supervisor must approve adverse actions recommend by a lower-level supervisor who is the subject of a known whistle-blower discrimination or retaliation claim, an independent evaluation of the recommendation must be made.
Conclusion
No article can guarantee a risk-proof outcome. Often, an employer's best decision is a choice between the lesser of two evils. But a process that takes control of decision-making and communication and that accurately reflects the company's commitment to basic fairness will help protect the employer for one simple reason: a process that is fair and is fairly documented is more likely to be perceived as fair - “ by employees, the EEOC, judges, and juries. And any effective company strategy to avoid (and defend, if necessary) retaliation claims should include closely following the EEOC's 'promising practices.'
Additional Resources
Second Circuit Lowers Bar for Causation in FMLA Retaliation Claims
Company's Reaction to Claim of Unequal Pay Provides Lessons for Employers