Amanda Fielder is an employment law litigator. She has successfully defended employers against claims of discrimination, harassment, retaliation and wrongful discharge. Amanda’s no-nonsense approach and fierce advocacy have earned her recognition as a “Rising Star” by the Michigan Super Lawyer publication for the past four years. This year, Amanda has been selected for the 2018 class of the Grand Rapids Business Journal’s 40 Under 40. She is also a member of the Firm’s Management Committee.
We often hear the term “retaliation” in employment litigation. How often do you see those claims in litigation?
Nearly every federal and state employment law contains anti-retaliation language. Consequently, retaliation claims are very common in employment disputes. Over the last 10 years, the number of charges filed with the EEOC alleging retaliation have almost doubled. In 2007, there were 26,663 retaliation claims filed with the EEOC. In 2017, that number rose to 41,097. The most common claim filed with the EEOC is retaliation. In the law suits I defend for employers, a retaliation claim is very common.
What actions by an employer can be considered retaliation?
To the employee, any action by the employer that the employee does not like is retaliatory. To a Court, however, the action must constitute an “adverse employment action.” An adverse employment action is any act that might discourage a reasonable employee from engaging in protected activity. This could include termination, an unfavorable performance review, a demotion, a reduction in pay or benefits, a change in title or responsibilities or an exclusion from workplace activities.
If an employee is performing poorly, but also has engaged in protected activity, can the employer do anything about the poor performance?
Absolutely. An employee cannot engage in protected activity as a way to shield himself from justified discipline. However, it is important that the employer promptly document performance problems and concerns. In addition, performance concerns should be communicated and addressed in writing with the employee during the performance review process, as well as during the course of the performance year. If this is done, the employee’s personnel file and other related performance documents will support a discipline decision.
If an employee makes a complaint that has no merit, is the employee still protected from retaliation for making an invalid complaint?
An employee is protected from retaliation even if the underlying complaint did not have merit. However, the underlying complaint must have been made in good faith. An employee can be disciplined for making a knowingly false complaint.
What advice would you offer to avoid retaliation claims?
The best way to avoid a retaliation claim is to be proactive. First, implement anti-retaliation policies and follow them. Second, effectively and fairly evaluate employees regularly. Third, if an employee makes a claim of discrimination, harassment, retaliation or opposes a violation of a law, move quickly. Immediately respond and address the employee’s concerns in writing. And the response should be consistent with the employer’s policies. Fourth, maintain confidentiality when possible. Finally, if you are concerned about a potential retaliation claim, consult your attorney.