The Right to Be Told When There Is a Problem

Harassment and Retaliation

Unless employers know a problem exists, they cannot correct it. There is one area, however, in which employers have an absolute legal obligation to take in, investigate, and remedy employee complaints—namely, unlawful discrimination and harassment. Additionally, whenever employees complain about illegal activities, they enjoy a right to continued employment free from retaliation. These two issues, taken together, present one of the most dangerous employees an employer will face—the complainer.

Harassment

Let’s start with the basics. Harassment only becomes unlawful if it is harassment “because of” or “based on” some protected characteristic, such as sex. Indeed, while we commonly think of harassment as “sexual harassment,” and most workplace harassment policies are called “sexual harassment policies,” sexual harassment is not the only type of unlawful harassment. The law also protects against harassment based on any characteristic protected by the equal employment opportunity laws (e.g., race, religion, national origin, disability, and age). And the harassment must be objectively and subjectively severe or pervasive. In other words, Title VII and the other EEO laws are not a workplace civility code and do not prohibit generalized workplace bullying unrelated to a protected EEO classification:

The American workplace would be a seething cauldron if workers could with impunity pepper their employer and eventually the EEOC and the courts with complaints of being offended by remarks and behaviors unrelated to the complainant except for his having overheard, or heard of, them. The pluralism of our society is mirrored in the workplace, creating endless occasions for offense. Civilized people refrain from words and conduct that offend the people around them, but not all workers are civilized all the time. Title VII is not a code of civility.¹

In harassment cases, the conduct is actionable if it is “because of” sex or “based on” sex. To satisfy the “based on” element, a plaintiff must essentially show “that similarly situated persons not of [his or her] sex were treated differently and better.”

Is there a line between severe and pervasive sexually (or racially, or religiously, etc.) based comments or conduct and common workplace swearing and banter? According to Passananti v. Cook County,² the answer is “it depends.”

After losing her job as a deputy director with the Cook County Sheriff’s Department, Kimberly Passananti sued, claiming that her director had subjected her to sexual harassment by calling her a “bitch” on “numerous occasions” over a “progressive period of time.” A jury awarded Passananti $4.2 million in damages, of which $70,000 was compensation for the sexual harassment. The trial court set aside the entire verdict. The 7th Circuit reinstated the verdict on the sexual harassment claim.

The Court started its analysis of whether the use of the word “bitch” constitutes sex-based harassment by dismissing any argument that its common use has neutered the word:

We recognize that the use of the word “bitch” has become all too common in American society, and its use has permeated many workplaces. Common use, however, has not neutralized the word as a matter of law.³

The Court concluded that even though “bitch” is sexually based, its use must be examined in context to determine whether it constitutes harassment “because of sex.”

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We do not hold that use of the word “bitch” is harassment “because of sex” always and in every context. . . . [T]he use of the word in the workplace must be viewed in context. . . . But we do reject the idea that a female plaintiff who has been subjected to repeated and hostile use of the word “bitch” must produce evidence beyond the word itself to allow a jury to infer that its use was derogatory towards women. The word is gender-specific, and it can reasonably be considered evidence of sexual harassment. . . .Whether its use is sufficient evidence of actionable sexual harassment is, of course, another matter. As with so many other things, when gender-specific language is used in the workplace, these cases and others recognize that context is key. We must proceed with “[c]ommon sense, and an appropriate sensitivity” to that context to distinguish between general vulgarity and discriminatory conduct or language “which a reasonable person in the plaintiff’s position would find severely hostile or abusive.”⁴

In other words, “bitch” is sufficiently gender-specific such that in most cases a jury should apply its common sense to determine whether the pejorative use of the word toward a female employee constitutes harassment because of sex.

In the day-to-day management of your employees, however, you should not get bogged down in legal minutiae whether one employee calling another employee a “bitch” is actionable sexual harassment. If an employee complains that he or she is being called vulgarities or other offensive names, you have only one option—investigate and take appropriate corrective action.

What about the equal-opportunity harasser—an employee who equally treats everyone like garbage? For example, non sex-based conduct that targets women and men the same, no matter how harsh, is not sexual harassment. Case in point? Miceli v. Lakeland Automotive Corp.⁵

During her tenure at Lakeland Automotive, Diana Miceli was its only female salesperson. Generally, she alleged that her manager abused, belittled, and harassed her. She admitted, however, that the manager treated the other salespeople (all male) the same way. Because the manager was an equal-opportunity abuser, the court upheld summary judgment:

The sales manager’s abrasiveness was not limited to Miceli. In Miceli’s deposition testimony she stated that “[e]veryone complained about [the sales manager].” Miceli admitted that the sales manager treated another male co-worker “extremely abusive[ly]” and “very condescending[ly].” . . . [T]here is no evidence to suggest that the . . . conduct, although rude and obnoxious, was motivated by gender. Personality conflicts, albeit severe, do not equate to “hostile work environment” claims simply because the conflict is between a male and female employee.⁶

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In other words, there is no law against being a workplace ass, just against being an ass based on some protected characteristic. I call this the “asshole defense” to harassment claims. In the words of one Ohio court:

Fortunately or unfortunately, not all upsetting or even mean-spirited conduct in the workplace is actionable. In the absence of an employee’s membership in a protected class, participation in a protected activity, or a clear public policy that prohibits the employer’s conduct, an employee cannot maintain a claim for harassment merely because his employment has become unpleasant or undesirable.⁷

Same-Sex Harassment

Oil rigs must be awful places to work. Oncale v. Sundowner Offshore Services⁸—the U.S. Supreme Court case that first recognized that Title VII protected employees from same-sex harassment (and which included allegations such as name-calling suggesting homosexuality, physical assaults, and attempted rape)—involved an oil platform. In Wasek v. Arrow Energy Services,⁹ another same-sex harassment case involved oil rig employees. Wasek, however, did not turn out as well for the complaining employee as did Oncale.

To save money after accepting a job with Arrow Energy, Harold Wasek decided to share a hotel room with one of his new coworkers, Paul Ottobre. As it turns out, that decision proved to be a poor one. Ottobre tormented Wasek by grabbing his buttocks, poking him in the rear with a hammer handle and long sucker rod, making comments such as, “You’ve got a pretty mouth,” “Boy, you have pretty lips,” and “You know you like it, sweetheart,” telling sexually explicit jokes, stories, fantasies, and calling Wasek names. Wasek believed that Ottobre acted like this because he was bisexual.

When Wasek complained, his superiors first told him not to “make waves [by] whining,” and later told him he should just “kick [Ottobre’s] ass,” that they should “duke it out” to “get it out of [their] systems.” When Wasek pursued the issues with HR, the regional supervisor told him that it’s “the way the oil field is” and that if Wasek could not handle it he “should find another line of work.”

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The Sixth Circuit affirmed the dismissal of Wasek’s harassment claim:

Title VII is not “a general civility code for the American workplace.” . . . [T]he conduct of jerks, bullies, and persecutors is simply not actionable under Title VII unless they are acting because of the victim’s gender. No evidence exists that Ottobre was motivated by a general hostility towards men. And the oil rig was not a mixed-sex workplace, so there is no possibility of comparative evidence. Thus, in order to infer discrimination, Wasek must demonstrate that Ottobre was homosexual. In his deposition, Wasek speculated that Ottobre was “a little strange, possibly bisexual.” We need not delve into what inferences—if any—might be drawn from a harasser’s bisexuality. A single speculative statement in a deposition cannot be the first link in the “chain of inference” that Oncale recognizes may follow from the harasser’s nonheterosexuality. . . . Therefore, Wasek’s Title VII hostile work environment claim cannot survive.¹⁰

Regardless of where you stand on the issue of whether there should exist a law against generalized workplace bullying (which, to date, does not exist) employers should use this case as a teaching tool on how not to respond to a harassment complaint. It is shameful that the supervisors told Wasek to stop whining, suggested fisticuffs to settle the issue, and ultimately chalked it up to the nature of the workplace. There are a million better ways this employer could have handled these complaints and not have to rely on a legal argument that this misconduct is not actionable Title VII harassment.

National Origin Discrimination—Context Matters

Consider the following examples:

• EEOC v. Spitzer Management:¹¹ Employer denied summary judgment based on allegations that an Asian American employee was called “slant eye” and “rice rat,” and an African American employee was called a “jungle bunny” and a “gorilla.”
• Burrage v. FedEx Freight:¹² Employer granted summary judgment based on allegations that an employee was repeatedly called a “Mexican” and referred to as “cheap labor.”

How do you rationalize these two seemingly incongruous decisions? The reconciliation depends on the national origin or race of the complainant. In Spitzer, an Asian American was complaining about harassment based on his national origin and an African American about harassment based on his race. In FedEx, however, the complainant was not Mexican American or of any Hispanic descent. In reality, he was half white and half black. As the court in Burrage v. FedEx explained:

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At best, the references to Burrage as “the Mexican” and “cheap labor,” and the use of the Spanish terms “andale” and “ariba,” represent the very unfortunate employment of offensive stereotypes of Hispanics, and can be said to arise out of a misperception that Burrage was of Hispanic descent.¹³

Burrage seems to argue that he was harassed because of physical characteristics that made him appear to be a member of a protected class of which he was not an actual member. Claims based on perceived class membership are not legally viable under Title VII, and the Court will not expand the reach of Title VII to cover that which Congress chose not to protect.

Avoid the temptation to take refuge in Burrage v. FedEx and use it as an excuse to condone harassment. FedEx just as easily could have gotten dinged for ignoring an employee’s four years of complaints. Regardless of whether there is synergy between the harassment and the harassed, take the complaint seriously, investigate, and deploy appropriate corrective action if necessary. Do not hang your harassment hat on a technicality, because the court hearing your case might not be so generous.

Employer Liability for Harassment

An employer’s liability for unlawful harassment depends, in part, on whether the alleged perpetrator of the harassment is a supervisor or a coworker. Employers are strictly liable for unlawful harassment committed by a supervisor but only liable for harassment committed by a nonsupervisory coworker if the company was negligent in discovering or remedying the harassment.

In Vance v. Ball St. Univ.,¹⁴ the court concluded that for the purpose of imposing strict liability for harassment, “supervisor” means “direct supervisor.” That is, if the alleged harasser is a supervisor in title, but lacks the power to directly affect the terms and conditions of the plaintiff’s employment, strict liability cannot attach, and the court must analyze the employer’s liability under a negligence standard. An employer’s liability for coworker harassment hinges on the reasonableness of the employer’s own acts or omissions in responding to and remedying the harassment. An employer’s response is unreasonable if it manifests indifference or unreasonableness in light of the facts that the employer knew or should have known. Conversely, an employer’s response is adequate if it is reasonably calculated to end the harassment.

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Yet, the federal appellate courts are split on this issue. The First, Third, Sixth, and Eight Circuits agree with the Seventh Circuit’s opinion in Vance v. Ball St. Univ., while the Second, Fourth, and Ninth Circuits, in addition to the proemployee EEOC, conclude that a supervisor is a supervisor regardless of the degree of oversight or control over the alleged victim of the harassment.

Regardless of the liability standard, what’s the best way to avoid missing a harassment problem? Don’t be an ostrich. Under no circumstances can you, as an employer, ignore harassment that you know about or should know about. It is not a defense for you to bury your organizational head in the sand and hope that it will all be gone when you emerge into the sunlight. If you opt for the “ostrich,” all you will see after shaking the sand off your face is an expensive (and indefensible?) harassment lawsuit.

What Do You Do When an Employee Complains?

Now that you understand some of the legal landscape of harassment, what are an employer’s responsibilities when an employee comes with a complaint of harassment?

The first step is making sure you have cleared an unobstructed path for employees to make complaints in the first place. Consider, for example, EEOC v. Management Hospitality of Racine, Inc., d/b/a International House of Pancakes, Flipmeastack, Inc.,¹⁵ which concerns allegations (too vile in their particulars to be repeated here) of sexual harassment of two teenage employees by a Flipmeastack manager a decade their senior.

The employer tried to avoid liability by relying on its zero-tolerance sexual harassment policy and its prompt investigations of complaints. The court disagreed for several reasons, including that managers had never received any harassment training and that the employer waited two months to investigate the complaints in this case. Most importantly, however, the court concluded that the employer’s harassment policy failed on its face:

An employer’s complaint mechanism must provide a clear path for reporting harassment, particularly where, as here, a number of the servers were teenagers. . . . Flipmeastack’s sexual harassment policy did not provide a point person to air complaints to. In fact, it provided no names or contact information at all.¹⁶

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What does this mean for you? A harassment policy is worthless if it does not tell employees how to complain and to whom to make complaints. Here are four points to keep in mind:

1.  Any harassment policy should have more than one avenue available for an employee to complain, such as different people across different departments.

2.  Additionally, employees should not be limited to complaining in person. Employees should be able to complain in writing, over the phone, or by email.

3.  Consider setting up a telephone or email hotline to log complaints.

4.  Ensure that the person accused of the harassment is not the individual receiving complaints or conducting investigations. That person, even if it is your director or human resources or chief executive office, must be screened-off from any investigation other than his or her own investigatory interview.

The second step is making sure that you take your harassment policy seriously, and are not merely paying it lip service. It is one thing to have a harassment policy. In fact, you would be hard-pressed to find many businesses that do not. It is entirely another thing, however, to have corporate culture that takes the enforcement of that policy seriously.

EEOC v. Dave’s Supermarkets¹⁷ illustrates the dangers that lurk for employers that choose to give their harassment policies lip service.

In Dave’s Supermarkets, female employees complained that the store ignored their complaints when the meat department manager sexually harassed them. The court not only denied the employer’s summary judgment motion as to (most) of the employees’ harassment claims but also permitted their punitive damage claims to proceed to a jury trial. In refusing to dismiss the punitive damages claims, the court relied heavily on the fact that while the employer maintained a detailed antiharassment policy, it did not follow through on its own procedures when it received the plaintiffs’ complaints.

A comprehensive antiharassment policy involves three components:

1.  The antiharassment policy.

2.  Appropriate training of all employees about that policy.

3.  A consistent corporate culture that take the policy and the company’s antiharassment stance seriously.

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Having a policy and enforcing it are two different animals. A policy is only as good as the people who execute it. Training and the right corporate culture are necessary to ensure that your antiharassment policy works as best as it should and as often as it is needed. Otherwise, you are left in the awkward (and expensive) position of having to explain to a jury why your actions did not match your policy.

Conversely, take a look at the employer’s antiharassment program in Brenneman v. Famous Dave’s of America,¹⁸ in which the employer meaningfully responded to a complaint upon receipt and in the process saved itself from liability for some fairly offensive conduct by a supervisor.

Christine Brenneman sued Famous Dave’s for sexual harassment. She claimed that her immediate supervisor, David Ryburn, subjected her to a hostile work environment through the following actions: daily winks and blowing kisses; at least three slaps on her buttocks; at least twice daily tugging on the badge attached to her belt; when she was having difficulty putting a letter into an envelope, telling her to “pretend it was a condom and slip it on real soft”; and, when she asked him to “stab” a receipt, responding, “I’d love to stab you.” There was no issue as to whether those incidents created a hostile work environment, but whether (1) Famous Dave’s exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (2) whether Brenneman failed to take advantage of any preventative or corrective opportunities provided by the employer or otherwise to avoid harm. Because Brenneman unreasonably quit her employment and did not suffer a tangible employment action, proof of both elements would permit Famous Dave’s to escape liability for the harassment by its supervisor, for which it would otherwise have been vicariously liable.

So let’s look at Famous Dave’s policies and how it responded to Brenneman’s complaint:

1.  Antiharassment policy. Famous Dave’s had a facially valid antiharassment policy, with a nonretaliation provision, and a flexible reporting procedure, listing four different people an employee could contact in case of harassment. Famous Dave’s also maintained an employee hotline that employees could use to report harassment. It distributed the policy to all employees, including Brenneman, and specifically trained about the policy and how to use it.

2.  Prompt corrective action. When Brenneman reported the harassment via the hotline, Famous Dave’s immediately sent an HR representative to investigate and stop the harassment. It attempted to work out a new schedule with Brenneman to keep her away from Ryburn. It also offered to transfer her to a different store 5 miles away. Brenneman did not accept any of the remedial measures and instead quit.

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Famous Dave’s did most things right in responding to Brenneman’s complaint. It had a meaningful antiharassment policy. The employer widely disseminated it, the employees received training about the policy, and the employer provided multiple avenues to complain, including a simple hotline to call. And the employer acted promptly and tried to implement what it thought was reasonable, meaningful corrective action to end the harassment.

In sum, an employer does not discharge its duty to remedy harassment merely by taking some corrective measures. Instead, the corrective measures must be reasonably designed to prevent future harassment. To attempt to minimize liability for coworker sexual harassment, businesses should be aware of the following factors upon receipt of a harassment complaint:

1.  Promptness. Upon receipt of a complaint of harassment, a business must act as quickly as reasonably possible under the circumstances to investigate and, if necessary, correct the conduct.

2.  Thoroughness. Investigations must be as comprehensive as possible given the severity of the allegations. Not every complaint of offensive workplace conduct will require a grand inquisition. Egregious allegations, however, usually require a more comprehensive investigation.

3.  Shielded those with potential bias. You should exclude from the investigatory process anyone involved in the alleged transgressions. Including an alleged harasser in the inner circle of your investigation will enable the complaining employee to claim that bias irreparably tainted the investigation.

4.  Consider preliminary remedial steps. While an investigation is pending, it is best to segregate the accused(s) and the complainant(s) to guard against further harassment or, worse, retaliation. Unpaid suspensions can always retroactively be paid, for example, and companies are in much worse positions if they are too lax instead of too cautious.

5.  Communication. The complaining employee(s) and the accused employee(s) should be made aware of the investigation process—who will be interviewed, what documents will be reviewed, how long it will take, the importance of confidentiality and discretion, and how the results will be communicated.

6.  Follow-through is crucial. There is nothing illegal about trying remedial measures less severe than termination in all but the most egregious cases. A valued employee may be no less valued after asking a coworker about her underwear. If the conduct continues, however, the discipline must get progressively harsher. If you tell an employee that termination is the next step, you must be prepared to follow through on that threat or face the risk of being second-guessed by a court.

Hindsight is 20/20 and investigations are always subject to being second-guessed. Promptness, consistency, thoroughness, and follow-through are a business’s best friend in responding to harassment complaints. A failure of any one could expose a company to liability for failing to take appropriate remedial action. Complacency is also dangerous. As the Engel case illustrates, one cannot assume that remedial measures are working, and if there is reason to believe they are not (such as a second complaint), more severe measures must be taken.

Finally, if you have doubts at all, involve an attorney. West v. Tyson Foods¹⁹ provides a great example of the importance of the early involvement of counsel.

Amanda West quit her job at a Tyson chicken-processing plant after being subjected to more than a month of fairly pervasive sexual harassment. During her exit interview with Tyson’s HR manager, West talked about all of the harassment to which she had been subjected and that her supervisors failed to respond to her complaints. She also identified the perpetrators by name. The HR manager, however, did not conduct any investigation into the allegations until after Tyson received West’s EEOC charge. At trial, the court admitted into evidence the HR manager’s notes from the exit interview, along with its EEOC statement of position. That position statement falsely claimed that Tyson launched an investigation following the exit interview. From this evidence—along with the evidence of the harassment and the supervisor’s lack of response—the jury awarded West $1,281,636.58—$131,636.58 in lost wages, $750,000 for mental distress, and $400,000 in punitive damages—which the Sixth Circuit affirmed.

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What is the lesson here? Having an attorney draft the position may not have saved the day, but it would have certainly lessened the impact of Tyson’s involvement in the harassment. The misstatements in the position statement make it look like Tyson was trying to cover up what happened. That perception of a cover-up likely led to the high compensatory and punitive awards.

How Do You Remedy Harassment?

Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as “nigger” by a supervisor in the presence of his subordinates.

So said the Seventh Circuit in Rodgers v. Western-Southern Life Ins. Co.²⁰ Harassment works on a sliding scale. To be actionable, the offensive conduct creating the hostile work environment has to either be severe or pervasive. Isolated incidents are not pervasive but can be severe, depending on the language used. A white employee dropping an “N-bomb” on a black employee can certainly satisfy severity.

How then did the employer escape liability for workplace “N-bombs” in Hargrette v. RMI Titanium Co.?²¹ It took swift remedial action.

In 2002, Kearns allegedly called McKinnon a “nigger.” . . . [T]he inappropriate comment occurred during an argument between Kearns and McKinnon. The argument resulted in both Kearns and McKinnon being suspended for three days. In his deposition, McKinnon states that Kearns was not a supervisor. In addition, this remark appears to be an isolated instance. While McKinnon stated he did not get along with Kearns, it is only alleged that Kearns called McKinnon a “nigger” on this single occasion. Finally, we note that, upon being informed of the incident, management investigated the situation and reprimanded Kearns for his misconduct.²²

But, what is prompt remedial action? In Bailey v. USF Holland,²³ the Sixth Circuit had occasion to examine whether the employer’s response to two African American employees’ claims of racial harassment was sufficiently prompt to defeat liability. This case provides a good case study from which companies can learn how, and how not, to respond to an employee’s internal complaint.

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Bailey and Smith, both African American, were dock workers for USF Holland. Throughout their employment, their white coworkers constantly subjected them to the word “boy.” When they would complain to their coworkers that the word “boy” is offensive when directed at a black man, they would sarcastically respond, “Damn it, boy.” The more they complained, the more serious the harassment would become. It moved from words to vandalism, including “boy” spray painted on equipment, etched into walls, used to depict black men in cartoon drawings, and even written on a calendar on MLK Day. The harassment was not limited to the use of the word “boy.” Bailey discovered a noose hanging in the dock area, and Smith overheard one white coworker telling another that he liked Smith because he could call him “a low-down dirty nigger” and Smith would not do anything about it.

Two years after Bailey and Smith started complaining to management about the offensive use of the word “boy,” a new terminal manager and the VP of HR decided to conduct “sensitivity training” at the terminal. During that training it was explained that “boy” was offensive to African Americans because it was used as a racial epithet during slavery. During the training, “several white employees voiced resistance to the idea that it was wrong to refer to African American men as ‘hey boy’ or ‘damn it boy.’” One white employee, Fred Connor, even told the terminal manager that “boy” was a “southern thing” and he would continue to use it regardless of company policy.

Not surprisingly, the behavior continued for several months after the training, as did Bailey and Smith’s complaints to management. At that time, USF brought in an outside lawyer who conducted a three-day investigation. He concluded that “while the environment likely is nonracially hostile [huh?], it is certainly one in which more sensitive employees can feel uncomfortable.” As a result, the VP of HR wrote to Bailey and Smith, telling them that the company could not discipline any employees because the use of “boy” was not racially motivated and that everyone had denied the other alleged conduct.

As the graffiti and harassment continued, USF hired a handwriting expert and terminated the offending employee, Fred Connor. He filed a union grievance and was reinstated. After his reinstatement, Connor reiterated to the terminal manager that “he would not adhere to the policy and would continue to use the word ‘boy’ as he saw fit.”

Finally, in 2006, four years after Bailey and Smith’s first complaint and a year after they filed their lawsuit, USF installed 25 security cameras, which finally ended the graffiti.

At a bench trial, the district court judge awarded Bailey and Smith each $350,000 in compensatory damages.

On appeal, USF argued that it could not be liable for the harassment because it took “reasonable, prompt, and appropriate corrective action.” The court disagreed:²⁴

Defendant cites examples of its corrective action, noting for example that it “consistently had a reasonable harassment policy,” conducted employee meetings to respond to plaintiffs’ complaints, and disciplined the employee responsible for the graffiti. The district court correctly rejected these actions as insufficient. A harassment policy itself means nothing without enforcement, and the persistent harassment plaintiffs received over an extended period of time caused the district court to conclude that the policy was not consistently enforced. Defendant conducted employee meetings, but plaintiffs’ coworkers stated that they did not consider their use of “boy” to be offensive and insisted that they would continue to use it. Defendant discharged Connor once it discovered that he created the graffiti, but he was reinstated soon thereafter. USF Holland was unable to stop the graffiti until it installed security cameras—an act it did not take until after plaintiffs initiated this lawsuit.

Termination of the alleged harasser is not the be-all and end-all of corrective action. Usually courts do not second guess an employer’s course of remedial action. Indeed, had the sensitivity training succeeded in ending the harassment, I doubt that Bailey and Smith would have prevailed. When, however, the offending employee tells the VP of HR during sensitivity training that he will continue calling black employees “boy” and others offer similar resistance, a company cannot turn a blind eye and hope that everything will work out. By the time employees started being disciplined and security cameras were involved, it was “too little, too late.”

The timeline in this case spanned nearly 4 years from the first complaint to the installation of the cameras. In a case such as this, 4 weeks might not even be quick enough of a response. The severity of the response (i.e., counseling, discipline, termination) can vary depending on the severity of the harassment, but the quickness of the response cannot. Companies that allow problems such as these to fester and continue by dragging their feet in investigating and remedying them do so at their own peril, as the $700,000 verdict in this case illustrates.

Moreover, how do you know if the punishment you impose fits the crime? An employer has an absolute obligation to investigate a complaint of harassment and, where founded, take appropriate corrective action to stop the harassment from continuing. Consider Wilson v. Moulison North Corp.,²⁵ in which the plaintiff alleged that his employer failed to take appropriate corrective action in response to his complaint that coworkers created a workplace permeated by heinous racially discriminatory taunts. The plaintiff argued that the employer’s verbal reprimand and warning that future harassment would result in termination was too mild a sanction and that the company should have immediately terminated them instead.

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The court refused to armchair-quarterback the employer’s business judgment:²⁶

In most situations—and this case is no exception—the imposition of employee discipline is not a rote exercise, and an employer must be accorded some flexibility in selecting sanctions for particular instances of employee misconduct. . . . The short of it is that, given the totality of the circumstances, the punishment seems to have fit the crime.

We appreciate the sincerity of the plaintiff’s outrage, but the discipline imposed need not be such as will satisfy the complainant. . . . The plaintiff’s argument that the sanction must have been inadequate because it was ineffective to stop the harassment is nothing more than a post hoc rationalization. . . . Barring exceptional circumstances (not present here), a reasoned application of progressive discipline will ordinarily constitute an appropriate response to most instances of employee misconduct.

The key takeaway here is the progressiveness of progressive discipline. When might a similar warning not suffice and a court require more severe corrective action?

• If the perpetrators are repeat offenders.
• If discrimination is a long-standing problem for the employer.
• If the employer has a history of inconsistent discipline.

Absent these “exceptional circumstances,” do not always jump to the conclusion that a harassment investigation must end in termination. Instead, make the punishment fit the crime.

A Word on Confidentiality in Workplace Investigations

In Banner Estrella Medical Center²⁷, the NLRB concluded that an employer’s request to employees not to discuss a workplace investigation with their coworkers while a workplace investigation was ongoing violated the employees’ rights to engage in protected concerted activity under the NLRA:

To justify a prohibition on employee discussion of ongoing investigations, an employer must show that it has a legitimate business justification that outweighs employees’ Section 7 rights. . . . Respondent’s generalized concern with protecting the integrity of its investigations is insufficient to outweigh employees’ Section 7 rights. Rather, in order to minimize the impact on Section 7 rights, it was the Respondent’s burden “to first determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, or there [was] a need to prevent a cover up.”

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Workplace interviews are high-stake affairs that carry serious liability repercussions for the employer. Moreover, it is often difficult to determine who is telling the truth and who is lying. This difficulty is exacerbated by the fact that those conducting these investigations are not trained detectives but often HR personnel.

One sure-fire tool one can use to figure out who’s telling the truth and who’s lying is to see how everyone’s stories jive or contradict. For this reason, one of the key instructions that should be given in any workplace investigatory interview is that the employee should keep everything said confidential. That way, later interviewees will not be influenced and do not have an opportunity to compare (and prepare) their stories.

By prohibiting employers from requiring that workplace investigations remain confidential, the NLRB’s decision in Banner Estrella neuters the ability of employers to make key credibility determinations. Limiting confidentiality in this manner will severely constrain the ability of employers to conduct thorough and accurate workplace investigations, which, in turn, will limit the ability of employers to stop the workplace evils they are investigating (discrimination, harassment, theft, etc.).

What are employers to do? One option is to ignore Banner Estrella, in light of conflicting guidance from the EEOC, in its requirement, contained in its Enforcement Guidance on the topic of harassment investigations, that employers keep workplace investigations confidential:

An employer should make clear to employees that it will protect the confidentiality of harassment allegations to the extent possible. An employer cannot guarantee complete confidentiality, since it cannot conduct an effective investigation without revealing certain information to the alleged harasser and potential witnesses. However, information about the allegation of harassment should be shared only with those who need to know about it. Records relating to harassment complaints should be kept confidential on the same basis. A conflict between an employee’s desire for confidentiality and the employer’s duty to investigate may arise if an employee informs a supervisor about alleged harassment, but asks him or her to keep the matter confidential and take no action. Inaction by the supervisor in such circumstances could lead to employer liability. While it may seem reasonable to let the employee determine whether to pursue a complaint, the employer must discharge its duty to prevent and correct harassment. One mechanism to help avoid such conflicts would be for the employer to set up an informational phone line, which employees can use to discuss questions or concerns about harassment on an anonymous basis.²⁸

The EEOC’s Buffalo, NY, office, however, has notified an employer of an investigation of its policy of warning employees not to discuss harassment investigations with coworkers:

You have admitted to having a written policy that warns all employees who participate in one of your internal investigations of harassment that they could be subject to discipline or discharge for discussing “the matter,” apparently with anyone.

Epilogue—How Bad Can This Get?

The acts of sexual harassment alleged by Ashley Alford against her supervisor, Richard Moore, in Alford v. Aaron Rents, Inc. are among most horrific I have ever encountered (taken from the court’s opinion denying the employer’s motion for summary judgment²⁹):

• Shortly after Alford began working at Aaron Rents, beginning in November 2005, Moore began intentionally and inappropriately touching her.
• Moore called Alford degrading pet names, such as “Trixie” and “Trix.”
• Moore gave Alford unwanted gifts for which he demanded “sucky-sucky.”
• Moore grabbed Alford by her ponytail, unzipped his pants, pulled her head back and hit her in the head with his penis, twice.
• Moore grabbed Alford, threw her to the floor, pulled up her shirt, masturbated, and ejaculated on her.

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As reprehensible as these allegations are, what is perhaps more stunning is that Alford’s employer ignored her complaints for more than a year and only took action after she involved the police.

A jury added up all of these facts and returned with one of the largest verdicts ever in a single-plaintiff harassment case—$95 million. The St. Louis Post-Dispatch³⁰ quoted a representative of the company, who called the verdict “the work of a ‘classic runaway jury.’” I agree. The conduct proven at trial was horrendous, but no single-plaintiff employment case is worth $95 million.

Nevertheless, this verdict underscores the importance of prompt and thorough investigations into complaints of harassment by employees. The jury did not subject the employer to this verdict because of the acts of a rogue supervisor but because the company did not do anything about him when the plaintiff complained. Do not make this same mistake in your business.

Retaliation

The statutory protections for retaliation come in two flavors: participation and opposition. The former protects employees who have “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under” the relevant statute. The latter protects employees who have opposed any discriminatory employment practice. Participation is easy to spot; opposition, however, often proves to be elusive.

Jackson v. Board of Education of Memphis City Schools³¹ answers the question of how far the opposition clause goes to protect employees who make unreasonable or unfounded complaints about discrimination. It also teaches an important lesson that not every employee who complains about discrimination is bulletproof.

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The Memphis City Schools employed Janice Jackson (African American) as a teacher’s assistant. She worked at a school run by an African American principal. 97% of the school’s staff was African American, including 29 of the school’s 31 teacher’s assistants. After being admonished by the principal for unprofessional behavior, Jackson delivered a personal letter, in which she indicated that she felt unfairly singled out because her white coworkers were allowed “duty-free breaks,” while African Americans were “criticized for taking breaks”—”a clear violation of the Civil Rights Act of 1964.” After her transfer to a different school, she sued, claiming retaliation.

The court of appeals affirmed the trial court’s dismissal of her retaliation claim. The court noted that to support a claim of retaliation under the opposition clause, an employee’s opposition must “be based on a reasonable and good faith belief that the opposed practices were unlawful.” In this case, Jackson did not come forward with any evidence that the school principal treated African American employees differently than white employees. Instead, the court concluded that she was merely addressing a legitimate personnel issue raised by Jackson’s unprofessional behavior.

Critically, the court went out of its way to point out that employers do not always need to fear taking action when faced with a poor-performing employee who happens to complain about discrimination.

To hold that opposition is reasonable when the employer is addressing an apparent and legitimate personnel matter in a way that does not explicitly or implicitly implicate Title VII, with no other testimony or evidence of racial discrimination, would hamper an employer’s ability to address legitimate issues for fear that doing so could leave the employer vulnerable to liability under Title VII.

Many employees believe they can make themselves bulletproof merely by raising the specter of discrimination. They wrongly believe that the antiretaliation statutes will automatically protect their jobs. Conversely, many employers have a paralyzing fear of terminating a complaining employee no matter the circumstances. Jackson demonstrates that both of these fears can be unfounded. The potential of a retaliation claim certainly ups the ante when terminating an employee who has complained about discrimination or harassment. Yet, in the right circumstances and for the right reasons, employers do not need to live in fear of firing a deserving employee, provided that they take the right steps and have the proper documentation.

Thus, Jackson defines the parameters of how far the opposition clause goes to protect unfounded or unreasonable claims of discrimination. Trujillo v. Henniges Automotive Sealing Systems NA, Inc.³² defines the specificity of one’s opposition to an act of discrimination.

Trujillo involves two different allegations of protected activity:

1.  After the company’s vice president referred to Mexican plant employees as “those fucking wetbacks,” Trujillo lightheartedly confronted him, resulting in an embarrassed apology.

2.  After the same vice president made some disparaging remarks about a Latin American employee, Trujillo spoke to the company’s Vice President of Human Resources.

The Sixth Circuit concluded that only the latter constitutes protected opposition:

We have previously held that advocating for members of a protected class is protected activity for purposes of Title VII retaliation. . . . Trujillo could have engaged in protected activity if he had complained about Rollins’s comment at the time, even though those comments were not directed at Trujillo personally. However, Trujillo’s own testimony makes clear that he did not complain to Rollins about the comments at the time they were made. With regard to the “wetback” comment, Trujillo admits that he did not communicate that Rollins’s comment offended him, let alone that he was complaining about the racial or ethnic character of the conduct. . . . In contrast, the district court erred in holding that Trujillo’s statement to Gasperut was not in “opposition” to the alleged racial character of Rollins’s comments. . . . We have repeatedly held that complaints to human resources personnel regarding potential violations of Title VII constitute protected activity for purposes of establishing a prima facie case of retaliation. . . . The fact that it was, as the district court characterized it, an “informal conversation” does not change the nature and purpose of the conversation, which was a “discrete, identifiable, and purposive” opposition to racially-oriented language.³³

Part of the takeaway from this case is that not every response to a tinged or biased remark qualifies for Title VII’s antiretaliation protections. This case, however, also teaches a different lesson. Opposition can rest in the eye of the beholder. The dissent, for example, would have refused to have protected any of Trujillo’s complaints and would have concluded that he had merely engaged in nonprotected venting:

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If the plaintiff had complained that such comments constituted discrimination against him, I would have no quarrel with the majority opinion. If the plaintiff had in any way intimated that such remarks could constitute discrimination against other people in the company, I would concur. However, the plaintiff himself said: “I kind of was just venting. I was not intending for her to take action.” Not every casual remonstrance against bad language equates to complaining of illegal discrimination.

What is the best practice? Assume all but the most attenuated of responses to a potentially discriminatory statement qualify as protected, and do not leave it in the hands of judges or juries to draw these nuanced distinctions. And, if you have to take action against someone who has arguably engaged in protected opposition, involve counsel in making the decision before you draw yourself into a potential lawsuit.

The opposition clause also covers employees who participate in internal workplace investigations. In Crawford v. Metropolitan Gov’t of Nashville,³⁴ the U.S. Supreme Court held that Title VII’s antiretaliation provision covers employees who answer questions during employers’ internal investigations.

The case involved the termination of a 30-year employee who answered her employer’s questions during its investigation into a coworker’s allegations of harassment against a different employee. The Court found Crawford’s activity to be protected by the antiretaliation provision’s opposition clause:

[N]othing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question. . . .

If it were clear law that an employee who reported discrimination in answering an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses against them-selves or against others. . . . The appeals court’s rule would thus create a real dilemma for any knowledgeable employee in a hostile work environment if the boss took steps to assure a defense under our cases. If the employee reported discrimination in response to the enquiries, the employer might well be free to penalize her for speaking up. But if she kept quiet about the discrimination and later filed a Title VII claim, the employer might well escape liability, arguing that it “exercised reasonable care to prevent and correct [any discrimination] promptly” but “the plaintiff employee unreasonably failed to take advantage of . . . preventive or corrective opportunities provided by the employer.” Nothing in the statute’s precedent supports this catch-22.³⁵

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How Soon Is Too Soon?

One question that is often repeated in retaliation cases is, “How soon is too soon to fire a complaining employee?” For example, if Jane Doe complains about retaliation today, how much time must elapse before the complaint will not irreparably taint her subsequent termination?

Typically, an employee needs to prove something more than the mere closeness in time between protected activity and adverse action. But what happens when the protected activity and the adverse action occur almost instantaneously? Consider Mickey v. Zeidler Tool & Die Co.³⁶, in which the Sixth Circuit held that where an adverse employment action occurs very close in time after an employer learns of a protected activity, such temporal proximity between events is significant enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation.

Charles Mickey, age 67, was a 33-year employee of Zeidler Tool & Die. After the company’s owner, Harold DeForge, cut his responsibilities and pay following Mickey’s refusal to retire, Mickey filed an age discrimination charge with the EEOC. DeForge first learned of Mickey’s EEOC charge when he arrived at the company on the morning of October 19, 2004. When Mickey arrived at 7:30 that same morning, DeForge followed him into his office and immediately fired him. The district court dismissed Mickey’s retaliation claim on summary judgment, relying on the proposition that temporal proximity, without more, is insufficient for a reasonable juror to conclude that DeForge would not have terminated Mickey but for the EEOC charge.

The Sixth Circuit reversed that dismissal, ruling that where an adverse employment action occurs very close in time after an employer learns of a protected activity, such temporal proximity, in and of itself, is significant to constitute evidence of a causal nexus. Contrarily, where some time elapses between when the employer learns of the protected activity and the adverse action, the employee must present other evidence of retaliatory conduct to establish the required causality. The Court explained its rationale for this distinction:

[If] an employer immediately retaliates against an employee upon learning of his protected activity, the employee would be unable to couple temporal proximity with any such other evidence of retaliation because the two actions happened consecutively, and little other than the protected activity could motivate the retaliation. Thus, employers who retaliate swiftly and immediately upon learning of protected activity would ironically have a stronger defense than those who delay in taking adverse retaliatory action. . . .In those limited number of cases–like the one at bar–where an employer fires an employee immediately after learning of a protected activity, we can infer a causal connection between the two actions, even if Mickey had not presented other evidence of retaliation.³⁷

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Meanwhile, Meyers v. Goodrich Corp.³⁸ illustrates the other end of the spectrum. In that case, an entire year lapsed between when the company’s vice president of HR interviewed the plaintiff in a harassment investigation and his termination. The Court concluded that the lapse in time, coupled with the lack of any additional evidence of a retaliatory motive, doomed Meyers’s claim:

In this case, no inference of causation can be deduced from “temporal proximity.” Goodrich did not terminate Meyers until a year after he participated in the internal discrimination investigation. Thus, to survive summary judgment, Meyers was required to submit additional evidence of retaliatory conduct—or discriminatory intent—between the time he took part in the protected activity and the time he was fired. There is evidence that sometime before October 2006, Goodrich managers met to discuss how to improve the overall performance of its employees, including supervisors. . . . The managers ranked Meyers the 24th lowest-performing production supervisor out of 26 supervisors. . . . Meyers’s manager at that time, sent Meyers a letter on October 26, 2006, notifying him that he had 30 days to improve and maintain his performance in certain areas, which were outlined in the letter. But notably, this occurred three months before Meyers took park in the internal investigation. Even according to Meyers, after January 2007 when the protected activity occurred, the evidence indicates that Goodrich’s conduct—if anything—was favorable to him, not retaliatory. He received a 3.5 percent merit raise in April 2007, where he asserts he “was in line with the raises of several of his fellow supervisors.” . . . As Meyers concluded in his appellate brief, “[t]he record is simply devoid of any evidence” that Goodrich treated him badly in 2007, . . . i.e., “[n]o write-ups, no disciplinary actions, no poor reviews.”³⁹

If you need to terminate an employee after he or she engages in some protected activity, what are the best practices for you to follow?

1.  Don’t wait to terminate. Shockingly, employees who complain about protected activity can be chronic complainers, often complaining about lots of innocent workplace issues before they step on one protected by Title VII or some other statute. Employees do not become insubordinate, obstinate, or difficult overnight. Yet a history of weak and nonconfrontational supervisors who refuse to do anything about it will doom a later retaliation claim. I’m not saying that you should fire an employee at the first sign of trouble, but there is a line between a fair warning and years of capitulation. The former will put you in good stead defending a lawsuit. The latter could result in a judge or a jury asking why you waited so long and looking for an illegitimate reason for the late-in-the-game termination.

2.  Document, document, document. There are few terminations that can survive scrutiny without proper documentation. Your odds as an employer go down exponentially if you pair a lack of documentation with a termination on the heels of protected activity. A poor performer is a poor performer, regardless of complaints about harassment or other protected conduct. Without a legitimate paper trail, however, you will find yourself without the ammunition to do anything about it.

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Defining What Job Actions Qualify as “Adverse” to Support a Retaliation Claim

The antiretaliation rules do not protect employees from all actions taken against them—only from adverse action. Yet what qualifies as “adverse” under the antiretaliation provisions of the various EEO statutes is very broadly defined.

In Burlington Northern & Santa Fe Railway Co. v. White⁴⁰, the Supreme Court clarified that an employer need not take an ultimate employment action (such as termination, demotion, or transfer) against an employee for retaliation to occur. Instead, any “materially adverse action” could constitute actionable retaliation. The Supreme Court explained the level of seriousness to which the employment action must rise before it becomes “adverse” and therefore actionable:

[A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination. We speak of material adversity because we believe it is important to separate significant from trivial harms. . . . The antiretaliation provision . . . prohibit[s] employer actions that are likely to deter victims of discrimination from complaining to the EEOC, the courts, and their employers. . . . And normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence.⁴¹

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Thus, the key determination in whether an employer has subjected an employee to an adverse employment action is the distinction between material adversity and trivial harm. During one’s employment, actions such as demotions, suspensions, and failures to promote all qualify as adverse actions, as might removing someone from a key team or refusing to let an employee sit at a certain table in the lunchroom.

What about postemployment actions? They could also qualify as “adverse” if they would reasonably dissuade someone from engaging in protected activity. Thus, for example, courts have concluded that each of the following postemployment actions could qualify as an adverse action to support a retaliation claim:

• A negative job reference⁴²
• The denial of pension credits or other benefits to which the employee was entitled⁴³
• The filing of a law enforcement complaint⁴⁴
• Threats and ostracism⁴⁵

What does this mean for employers? It means that retaliation does not stop on the last day of employment. It means that employers must treat ex-employees who have engaged in protected activity with the same kid gloves as current employees. And it provides one more concept to build into your EEO training for your managers and supervisors.

Associational Retaliation

In Thompson v. North Am. Stainless,⁴⁶ the Sixth Circuit originally recognized the theory of associational retaliation—that Title VII prohibits an employer from retaliating by inflicting reprisals on a third party (such as a spouse, family member, or fiancé) closely associated with the employee who engaged in such protected activity but who engaged in no protected activity of his or her own.

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In a unanimous opinion, the U.S. Supreme Court⁴⁷ agreed with the original opinion by the Sixth Circuit and recognized that certain employees, within the “zone of interests” protected by Title VII, will have a valid claim for associational retaliation:⁴⁸

Title VII’s antiretaliation pro­vision prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” . . . We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired. . . . We . . . decline to identify a fixed class of relation­ ships for which third-party reprisals are unlawful. We expect that firing a close family member will almost al­ways meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize. . . .

[W]e conclude that Thompson falls within the zone of interests protected by Title VII. Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation—collateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her. In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII.

What does all this mean?

1.  This supposed probusiness Court continues to be decidedly antibusiness when it comes to protecting employees from retaliation, and even the most conservative members of this Court are open to expanding civil rights when it satisfies a policy they consider important.

2.  Employers are now subject to retaliation for taking an adverse action against anyone “closely related” to an employee who engaged in protected activity.

3.  To claim associational retaliation, the aggrieved employee must prove that the employer intended to injure the associated employee by its action against the aggrieved employee.

For employers, there are no bright-line rules for associational retaliation. The real import of this decision is the expansion of Title VII’s retaliation rights to a whole new class of employees. Indeed, if Title VII protects those “who are so closely related to or associated” with employees who engage in protected activity, it simply begs the question, “How close is close enough?” In Thompson, the relationship was a fiancée. It is safe to assume liability will also extend to action taken against spouses. What about boyfriends and girlfriends? How long do you have to date to be protected from retaliation? The same protection also will probably extend to parents and children. What about siblings? Grandparents? Cousins? Third cousins twice removed? In-laws? Friends? Carpoolers? The people you share your lunch table with? The person you sat next to in 3rd grade? How close is close enough for an employer to intend for its actions to punish the exercise of protected activity? Do employers now have to ask for family trees and class pictures as part of the orientation process?

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These questions, none of which the Thompson court answers, could hamstring employers from making any employment decisions for fear of doing something against someone who has some relationship to someone else who complained about something last October. The implications of this case have the potential to reach that level of silliness. The best course of action is still to make legitimate personnel decisions for bona fide business reasons and let the chips fall where they may.

Closing Thoughts: Sue Me? No, I Sue You!!

There are two statements I hear from clients more often than any others:

1.  “I can’t believe we’re being sued for this. I want to countersue!”

2.  “I can’t believe we’re being sued for this. I want to collect our attorneys’ fees!”

As discussed below, both of these very natural inclinations are dangerous strategies to follow in lawsuits and should be avoided in all but the most extreme cases. Instead, employers should accept lawsuits from employees as a cost of doing business and move forward with their defense or settlement.

Counterclaims as Retaliation

In 1998, Tammy Greer-Burger filed a sexual harassment suit against Lazlow Temesi. The case proceeded to trial, at which Temesi prevailed. Thereafter, Temesi filed suit against Greer-Burger seeking to recover the $42,334 in attorney’s fees and costs he had incurred defending against the harassment suit, plus compensatory and punitive damages. In response to Tamesi’s lawsuit, Greer-Burger filed a charge of discrimination with the OCRC, claiming that Temesi’s lawsuit was retaliation for her protected conduct, the prior sexual harassment suit. Based solely on the fact that Temesi had filed suit, the OCRC found that Tamesi’s lawsuit was prohibited retaliatory conduct and ordered Temesi to immediately cease and desist from pursuing his lawsuit and to pay Greer-Burger the $16,000 she claimed to have expended in defending against it. The common pleas court and appellate court both affirmed the OCRC’s decision.

In reversing the lower courts, the Ohio Supreme Court started and ended its analysis with the First Amendment’s fundamental right to petition and seek redress in the courts. Despite the fundamental nature of that right, the Court recognized that the right to access courts is not absolute. The First Amendment does not protect “sham” litigation, that is, an objectively baseless lawsuit such that no reasonable litigant could expect success on the merits. To find that the mere act of filing a lawsuit is per se retaliatory, in the words of the Supreme Court, would “undermine the right to petition for redress by giving an administrative agency the power to punish a reasonably based suit filed in court whenever it concludes . . . that the complainant had one motive rather than another. . . . This danger is further highlighted when the only evidence of the complainant’s retaliatory motive is the simple act of filing a lawsuit.”⁴⁹ Because of the McDonnell Douglas burden-shifting analysis used in retaliation cases, the Court placed the burden on the employer to demonstrate, as its legitimate nonretaliatory reason, that an alleged retaliatory lawsuit is not objectively baseless:

Instead, we find it more prudent to permit an employer the opportunity to demonstrate that the suit is not objectively baseless. In determining whether the employer’s action has an objective basis, the OCRC administrative law judge should review the employer’s lawsuit pursuant to the standard for rendering summary judgment. . . . Thus, an employer needs to show his lawsuit raises genuine issues of material fact. If the employer satisfies this standard, the suit does not fall under the definition of sham litigation. The suit, therefore, shall proceed in court while the proceedings before the OCRC shall be stayed. The procedure outlined above falls within the jurisdiction of the OCRC as provided for in R.C. 4112.04 and promotes judicial economy because the employer’s lawsuit will not have to be fully litigated in the trial court before the OCRC can make its determination as to the reasonableness of the suit. In this way, the OCRC essentially shall vet the action to ensure it is not sham litigation.⁵⁰

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The majority opinion concluded by recognizing the stigma of being falsely accused as a discriminator and the importance of being able to seek legal redress to remedy that misclassification:

An employee’s right to pursue a discrimination claim without fear of reprisal is a laudable goal entitled to considerable weight. The OCRC’s position in this case, however, has the potential to give employees a carte blanche right to file malicious, defamatory, and otherwise false claims. As the concurring opinion of the appellate court astutely noted, the per se standard advocated by the OCRC does not advance the goal of Chapter 4112 when it “permits a claimant to engage in any kind of slander or defamation, and possibly even perjury, without consequence,” and then precludes “those falsely accused of being discriminators from seeking legal redress.”⁵¹

This case was decided under Ohio law, and the law of your state may differ. Even if, however, employees do not have carte blanche right to file malicious, defamatory, or otherwise false claims, employers should not rush into court to clear their names. Instead, employers should be wary in using Greer-Burger v. Temesi (or a similar decision) as a justification for filing lawsuits against unsuccessful discrimination plaintiffs. As the concurring opinion correctly points out: “The majority’s ‘not objectively baseless’ test sets a very low threshold.”⁵² Merely because this case gives companies the apparent right to file a claim does not mean ultimate success on that claim. Indeed, the decision whether to pursue a claim against an employee or ex-employee who has brought a discrimination claim must be carefully thought out and not merely filed as a knee-jerk reaction to being sued.

Chasing Attorneys’ Fees is a Fool’s Errand

There are statutes⁵³ and rules⁵⁴ in place that permit a defendant, in certain and extreme circumstances, to collect their attorneys’ fees from the plaintiff. But there are few cases that will meet this high threshold for recovery. In reality, the likelihood of a judge ordering that a plaintiff-employee pay the defendant-employer’s attorneys’ fees under one of these fee-shifting mechanisms is on par with winning the lottery.

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If you want to take any solace from this loser-doesn’t-pay system, consider these words, published by the Sixth Circuit Court of Appeals, in Gibson v. Solideal USA, Inc.:⁵⁵

As an initial general proposition, we are not entirely unsympathetic to Solideal’s position. Statutes designed to empower employees in the vindication of their rights may, at times, be used as bases on which a plaintiff asserts claims that are later determined to be without merit. Undeniably, large employers may be forced to incur significant litigation expenses in defending against such claims. However, if this Court were to follow the course now advocated by Solideal, it would effectively hold that a plaintiff who elects to forgo formal discovery and whose claims are unable to withstand summary judgment is responsible for paying all fees and costs the defendant incurred in connection with the litigation. This is a bridge too far.

Litigation is time-consuming and expensive. Some cases can last for a decade or longer. We all have principles. We don’t like to pay money to an undeserving plaintiff when we know that we are right. And when we prove that we are right, we think the plaintiff should pay us for our grief and aggravation. The system, however, is not set up to reward even the most deserving of employers in this way. The sooner employers realize that chasing reimbursement of their attorneys’ fees is a litigation snipe hunt, the sooner they can focus their efforts on the task at hand, concluding the case as quickly and cost-effectively as possible.

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