The Supreme Court hears arguments today in a case testing how managers may react after an employee complains about harassment or discrimination. But legal specialists say employers can take steps to minimize retaliation complaints through beefed-up training, investigations and follow-up efforts.
The touchy issue confronts many companies. Complaints to the Equal Employment Opportunity Commission that include retaliation allegations have more than doubled since 1992 and account for a record 30% of charges filed. Sometimes, employees win retaliation claims in court even when their bias allegations are dismissed. In the pending Supreme Court case, a jury ruled in favor of an employee’s retaliation claims but struck down her sexual-harassment ones.
The case involves Sheila White, a former forklift operator for Burlington Northern Santa Fe Corp. In 1997, she complained her foreman was sexually harassing her. He was suspended for 10 days. She was reassigned to dirtier track work, though her job classification stayed the same.
After she filed retaliation charges with the EEOC, a supervisor suspended Ms. White for insubordination. She was reinstated with back pay, but her lawyers contend the altered duties and suspension were illegal retaliation. Burlington Northern Santa Fe disagrees. “It can’t be that every judgment call a supervisor makes is the basis for a federal retaliation lawsuit,” says Carter G. Phillips, a Sidley Austin LLP managing partner in Washington, D.C., who represents the Fort Worth, Texas, railroad.
No matter how the Supreme Court rules, “companies are likely to see more retaliation claims,” predicts Mimi Moore, a partner at Bryan Cave LLP in Chicago. “Smart ones will focus harder on techniques that could limit such complaints.” Cardinal Building Maintenance Inc. already does. “The best defense is a very good offense,” explains Jim DeGrado, president of the commercial janitorial service in Alsip, Ill. He requires supervisors and managers to attend an annual five-hour class about workplace bias and harassment taught by Ms. Moore. One-fourth of the course focuses on retaliation.
Specialized training is important because some bosses accused of harassment may retaliate unintentionally. “They say, ‘I don’t want this accuser in my sight. I’m moving her to the basement,’ ” says Merrick Rossein, a City University of New York law professor and training consultant. He will discuss retaliation for 30 minutes of a two-hour session next month about job discrimination for managers at a New York media concern.
More Than Training
Cardinal Building Maintenance does more than train. When the 500-worker firm investigates sexual-harassment charges, officials remind everyone involved that “any retaliatory event is not tolerated,” Mr. DeGrado says.
If managers confirm the allegations, they discipline the harasser — and then check back with the victim every two weeks for six months about possible retaliation.
The follow-ups can reveal subtle problems. In one case, an office cleaner said she was being harassed by an employee of a Cardinal Building Maintenance customer. The customer moved the employee to another building, but the cleaner told Cardinal Building Maintenance managers during a follow-up chat that she felt uncomfortable because colleagues of the alleged harasser were giving her the cold shoulder. The situation improved after Cardinal Building Maintenance complained to the customer again, Mr. DeGrado recalls.
Some employers conduct follow-ups to protect against retaliation even when they can’t substantiate the original complaint. At one big East Coast law firm, a night word processor claimed her male supervisor treated her unfairly because she was black. The firm couldn’t confirm the charge. The supervisor then reassigned the woman to serve lawyers known as difficult to work with. Higher-ups warned him that he would lose his job if he repeated the retaliatory behavior, one partner says.
When Freada Klein conducts internal probes for corporate clients, the San Francisco sexual-harassment researcher and consultant always asks victims whether they want to keep their post. Unilaterally imposing job changes on someone who complains can be seen as retaliation, she cautions.
Cardinal Building Maintenance allows staffers who complain of harassment to change locations. The office cleaner spurned a transfer offer.
Code of Conduct
Other companies, such as Michaels Stores Inc., include tough antiretaliation policies in their employee handbooks. A few years ago, the arts-and-crafts retailer added the policy to its corporate code of conduct, which middle and upper managers must sign annually. Management primarily wanted to ensure “a pleasant working environment free from all types of harassment,” says a spokeswoman for the Irving, Texas, company. “The fact that it could potentially reduce legal exposure was a secondary focus.”
The Burlington Northern Santa Fe case could encourage employers to do more to reduce retaliation claims. Consider Carrols Corp., which the EEOC sued in 1998 over sexual harassment. The commission alleges that female employees of the nation’s biggest Burger King Corp. franchisee were assaulted, grabbed and called offensive sexual terms. Carrols believes that the EEOC charges — and related retaliation claims — are groundless.
Joseph Zirkman, Carrols’s general counsel, says the Syracuse, N.Y., concern has long had a strong sexual-harassment policy. But if the Supreme Court rules against Burlington Northern Santa Fe, he continues, “We might shore up the provisions to make it impossible to transfer anyone who has ever made a complaint.”