So far, 2011 is turning out to be a banner year for decisions expanding the anti-retaliation provisions of several federal statutes. In recent months, the United States Supreme Court issued three (3) significant decisions which expanded the scope of protections against retaliation for employees.
On January 24, 2011, the Supreme Court issued its decision in Thompson v. North American Stainless, LP, __ U.S. __ (2011), the Court held that protection from retaliation extends beyond the employee who actually opposed discrimination to her fiancé who also worked for the employer. Title VII of the Civil Rights Act (“Title VII) makes it “an unlawful employment practice for an employer to discriminate against any of his employees … because he has opposed an unlawful employment practice or because he has made a charge under Title VII” (42 U.S.C. § 2000e-3). The Court concluded that taking a retaliatory adverse action against the fiancé, the employer was hurting the employee who engaged in the protected activity of opposing discrimination at work.
Unfortunately for employers, the Court did not provide any guidance regarding what specific relationships are included within the protection of Title VII’s anti-retaliation provisions. This potentially exposes employers to retaliation claims from individuals who never complained of or opposed discrimination or opposed an allegedly illegal act, if the employee can establish some sort of close relationship with another employee who engaged in protected activity under Title VII.
The Supreme Court’s decision in Staub v. Proctor Hospital, __ U.S. __ (2011) was issued on March 1, 2011. In Staub, the Court addressed the so-called “Cat’s Paw Doctrine” and whether an employer can be held liable based on the discriminatory motives of lower level company officials who caused or influenced –but did not make – an ultimate employment decision. Staub was a military reservist who alleged that his immediate supervisor was hostile to his military obligations and that his supervisor falsely reported to the Vice President of Human Resources that Staub had violated a warning. Based on the supervisor’s report, the Vice President decided to fire Staub. Staub brought his claim under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which prohibits employers from discriminating against employees because of their service in the armed forces.
The Court held that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable” for unlawful retaliation. The Court reasoned that when the decision maker’s actions are predicated on a supervisor’s discriminatory animus, the discriminatory animus is still the proximate cause of the adverse action.
The Court provided little guidance as to when a decision-maker who investigates the basis for an adverse employment action could be shielded from liability except to state that if the decision-make’s investigation results in an adverse action for reasons unrelated to the supervisor’s original discriminatory motive then the employer will not be liable. The decision in Staub makes it much more difficult for employers to create a decision making system that can insulate them from potential liability for discrimination claims.
On March 22, 2011, the Supreme Court held that an employee’s verbal complaint of a violation of the Fair Labor Standards Act (“FLSA”) constitutes protected activity under the FLSA’s anti-retaliation provision (29 U.S.C. § 215(a)(3)). Kasten vs. Saint-Gobain Performance Plastics Corp., __ U.S. __ (2011). In Kasten, the plaintiff alleged that he was terminated in retaliation for repeated verbal complaints to his supervisors concerning the employer’s placement of time clocks that, as a practical matter, prevented employees from getting paid for the time they spent changing into and out of their protective gear in violation of the FLSA. The employer contended that the plaintiff could not bring a retaliation action under the FLSA because the anti-retaliation provision of the statute prohibits retaliation against an employee who “filed” a complaint and Kasten’s complaint was not “filed” because he made it orally.
The Court held that an oral complaint is protected under the FLSA when it is “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.” The Court relied upon prior interpretations of the FLSA and Equal Pay Act by the Department of Labor (“DOL”) and the Equal Employment Opportunity Commission, as well as the anti-retaliation language of the National Labor Relations Act.
The Kasten decision did not elaborate about the level of formality and clarity that would be necessary to put an employer on notice that an employee had made a protected “complaint.” Determining the requisite degree of formality that constitutes fair notice will be a fact-intensive inquiry which will no doubt be the subject of further litigation.
The Supreme Court’s decisions in Thompson, Staub and Kasten, are evidence of the growing trend of the Court to broaden the protections against retaliation for “whistleblowers” and others who engage in protected activity.
What Employers Should Do To Avoid Claims
- Review and update the personnel policies. Ensure that the policies expressly prohibit retaliation against anyone who makes a bona fide complaint or participates in the investigation of a complaint regarding discrimination and/or wages, hours and working conditions.
- Review internal complaint procedure to make sure it encourages individuals with bona fide complaints to use the procedure, rather than making ambiguous oral complaints that may not be recognized by a supervisor or manager as an “official” complaint.
- Require appropriate documentation of the receipt and handling of complaints under the complaint procedure.
- Train managers and supervisor on the broad reach of anti-retaliation rules and make them aware that when employees complain about any allegedly illegal activities or engage in whistleblowing, as such action may be the basis for a retaliation lawsuit.
- Utilize proactive performance management and train supervisors of the importance of accurate and timely documentation of deficient performance or violation of your organization’s policies.