Employers Need To Be Mindful of Anti-Retaliation Policy

Recently, CMDA attorneys Ronald Acho and son James Acho successfully disposed of a case that garnered some local publicity. A police officer sued a local municipality for retaliatory discharge, when the municipal police department discharged the officer from his employment, based on performance. The officer had filed some inter-departmental complaints and felt that his termination was in retaliation by the police department for filing the complaints. Thankfully, we were able to prove otherwise, but because of a recent United States Supreme Court Case employers need to be wary of retaliatory discharge suits becoming more common.

In the summer of 2006, the United States Supreme Court issued its decision in a case called Burlington Northern v. White, a decision that greatly expanded the scope of employer conduct which may constitute unlawful retaliation, pursuant to Title VII of the Civil Rights Act of 1964. The Court’s decision significantly impacts employers, for prior to the Burlington Northern decision, an employer could only be held liable for unlawful retaliation if the employer engaged in conduct that constituted an adverse employment action, such as a decision to terminate, a failure to promote, a failure to hire, etc. However, the Burlington Northern decision clarified that an adverse action is no longer required for retaliation to exist. The Court stated that not only may an individual maintain a retaliation claim if the action was adverse, but also ruled that retaliatory adverse actions outside of the work place are actionable.

• Employers should make certain that their updated EEO (Equal Employment Opportunity) Policy in the company’s handbook contains an anti-retaliation provision, including the following statements:
• Retaliation is prohibited not only by law, but also an equally by organization policy;
• Retaliation will not be tolerated and retaliatory acts will lead to severe disciplinary action up to and including termination of employment;
• Complaints of discrimination, harassment and retaliation are taken very seriously and will promptly be investigated;
• Anti-retaliation policy protects not only those who bring complaints of harassment, discrimination or retaliation, but also those who participate in the investigatory process (such as witnesses);
• Prohibited retaliation includes adverse actions independent of the workplace; and
• Examples of the kind of conduct that may be considered retaliatory under the organization=s policy (e.g., tangible adverse employment actions such as denial of promotion as well as other material changes in the terms and conditions of employment such as work assignments).

This little bit of proactive time may go a long way and perhaps be the reason you never have to defend a retaliatory discharge suit. If you have any questions about safeguarding against these types of suits, please feel free to contact James Acho in our Livonia office at (734) 261-2400 or via e-mail at jacho@cmda-law.com.