I. INTRODUCTION
Within the provisions of many federal and Nebraska anti-discrimination in employment laws, there may be found specific prohibitions against retaliation by an employer to an employee. Certainly, anti-retaliation laws serve to protect an employee from asserting his or her rights under applicable anti-discrimination laws. Employers should also be aware that these same anti-retaliation laws may also serve to protect employees who are not even covered by the substantive provisions of the anti-discrimination law at issue. Anti-retaliation claims are becoming an expanding class of complaints in employment discrimination cases. Examples may include the following:
II. FEDERAL LAWS AND GUIDANCE
Anti-retaliation provisions are found in Title VII of the federal Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Equal Pay Act, OSHA, ERISA and other federal statutes. For example Title VII of the Civil Rights Act provides:
It shall be an unlawful employment practice for an employer to discriminate against any of this employees or applicants for employment . . .because he has opposed any practice made an unlawful employment practice . . .or because he has made a charge, testified, assisted, or participated in an manner in an investigation, proceeding, or hearing . . .
The federal Equal Employment Opportunity Commission (EEOC) published Guidelines on Retaliation on May 20, 1998, that are used by the EEOC in its investigations under these types of complaint. The guidance discusses retaliation claims under the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act and the Equal Pay Act. In the guidance, it is clear that applicants for employment, current employees and former employees are protected from retaliation. In regard to conduct, the guidance recognizes and protects “opposition conduct” and “participation conduct.”
“Opposition Conduct” is a concept that involves complaints, whether internal or external, written or verbal, that relate to the person himself or herself or others regarding unlawful discrimination.
The concept encompasses opposition to discrimination, including the refusal to obey orders and threats to inform employer customers or the press regarding the discrimination. The analysis to be used by an EEOC complaint investigation is whether an employee reasonably believed (even when legally or factually incorrect) that an employer’s practice was unlawful employment discrimination.
“Participation Conduct” is a concept that encompasses the employee’s threat to file or the actual filing of a complaint or a charge of discrimination. The concept includes an employee’s cooperation, assistance or testimony in an investigation, proceeding, hearing or litigation.
If the employer’s action is likely to result in deterring “Opposition” or “Participation” conduct, the guidance states that his action is a prohibited adverse employment action.
III. NEBRASKA LAWS
Similar anti-retaliation provisions are found in Nebraska statutes and in some municipal ordinances. The Nebraska Fair Employment Practice Act and the Nebraska Act Prohibiting Unjust Discrimination in Employment Because of Age contain specific anti-retaliatory sections. The actual language of the Nebraska Fair Employment Practice Act is broader than most of the anti-retaliatory laws in that it protects employees that complain about any unlawful act and not just those acts that are unlawful under the law.
IV. AVOIDING RETALIATION CLAIMS
An employer’s set of employment policies should include a provision that prohibits retaliation and should have procedures in place to address complaints and investigations. The policy should be communicated to all employees while supervisors should be trained to understand and implement it.
Should problems arise, they should be treated reasonably, thoroughly and timely with appropriate documentation. Often, retaliation claims can present difficult situations, particularly in supervising the employee lodging the complaint or filing the action. Supervisors or managers should seek legal counsel prior to verbalizing or acting that has the potential of turning a weak claim into a stronger one.
The complaining employee should be assured that the employer has procedures in place and will work as quickly as possible to resolve the problem. Any delays in resolution of the problem should be conveyed to the employee. The employee should be encouraged to report any further experiences or events resulting from the complaint or participation in the investigation to let the employee know that the employer is making certain that he or she gets fair treatment in the course of the investigation.