Reducing Your Risk of Retaliation Claims

By: Jennifer Divine
Miller Nash LLP
Seattle, Washington

  • University Research Center Settles Retaliation Allegations After Firing Whistleblowers
  • Another Coach Sues School Alleging Retaliation For Opposing Title IX Violations
  • Nursing Student Could Not Pursue Harassment Claim, But Retaliation Claim Allowed
  • Assistant Dean Allowed To Proceed With Retaliation Case Where She Had Good Faith Belief That She Was Opposing Discriminatory Decisions By College Provost
  • Discrimination Suit Thrown Out But Jury Finds For Professor On Retaliation Claim

Do any of these situations sound familiar? Let’s hope none of them describe current events on your campuses.

As it happens, the headlines above are all fictional, so no need to spend time searching news archives to scope out the institution involved. Truth, however, is often stranger than fiction. The real cases that inspired the pseudo-headlines above were at least as worrisome to the administrators involved, and of course real cases are a good deal more expensive to defend than hypotheticals.

Retaliation claims are still on the rise.

Twenty years ago retaliation claims were only 15 percent of the total charges filed with the EEOC. Today, seven years after the Supreme Court’s 2006 decision in Burlington Northern & Santa Fe Railway Co. v. White, retaliation charges make up almost 40 percent of the EEOC’s docket. State agencies and court filings have seen similar dramatic increases.

Retaliation is a dangerous area for employers. An employee (or former employee) may not be able to support a complaint of discrimination or other unlawful conduct, but still be able to win a follow-on retaliation claim. In many cases, the underlying complaint is resolved internally, dismissed in an administrative process, or thrown out on summary judgment. Retaliation claims are not so easily quashed. Retaliation allegations are more fact-intensive, harder to settle, and more frequently survive summary judgment and get to a jury than do discrimination cases. And retaliation suits can be expensive — while juries (and judges) look skeptically at discrimination claims, they typically find it much easier to believe that a supervisor or other decision maker acted with a retaliatory motive against an employee who had accused the decision maker of wrongful conduct.

Preventing successful retaliation claims at your university.

A recent panel at the Higher Education Discrimination Law workshop held by the National Association of College and University Attorneys in Nashville, Tennessee, March 20-22, 2013, addressed these issues, giving useful tips to help employers defend against retaliation lawsuits as well as reduce the risk of retaliation claims being brought in the first place.

The presentation, “What Happens After the Whistle Blows: Derailing Retaliation Claims,” was moderated by Daniel Kaufman of the Chicago office of Michael Best & Friedrich LLPJennifer Divine of the Seattle office of Miller Nash LLP gave a legal overview of the expanding universe of retaliation and whistleblower claims and the evolving theories and standards that courts apply to these claims. Stephanie Leider, Senior Counsel in the Office of General Counsel, University of California, spoke on the best practices college administrators should use to establish a culture that respects and protects whistleblowers and prevents retaliatory situations from developing.

Tips include:

  • Implementing and enforcing strong policies that prohibit all forms of retaliation and provide multiple avenues for reporting.
  • Training employees on university policies and how to report complaints.
  • Training supervisors regarding what retaliation is and where to refer complaints.
  • Referring complaints to trained and impartial personnel to investigate and resolve.
  • Advising whistleblowers to promptly report any retaliation or threat of retaliation.
  • Following up with complainants and monitoring treatment of whistleblowers.
  • Training the whistleblower’s work unit and working with the supervisor to prevent retaliation by co-workers.
  • Counseling supervisors on dos and don’ts in treatment of employee who has reported complaint against the supervisor, and giving the supervisor a place to vent and ask questions.
  • Changing the supervisory relationship when necessary.
  • Following sound employment practices with fair and consistent treatment of all employees.
  • Documenting candid performance evaluations in writing at least annually and promptly informing employees of performance problems in between annual reviews.
  • Giving employees an opportunity to respond to performance criticisms and coaching.
  • Ensuring that discipline and termination decisions are well-founded and supported by documentation.

Materials from the presentation are available to NACUA members and can be accessed online at the NACUA website.

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