Don’t Slap the Complainers! It may only end up hurting you!

by Renee Mielnicki, Esq.

All employers have at least a handful of employees who are chronic complainers. It seems like they are never happy. Their raise this year wasn’t sufficient, the Christmas party was lame, it’s too hot or too cold in the office, and so on and so forth. Their perpetual state of unhappiness seems to do nothing but bring morale down for those around them. It’s so painful to be around them, in fact, it may be tempting to simply avoid them or ignore them all together. Be careful though. These serial whiners may be making a legitimate legal claim in the midst of what seems like pointless ranting. No matter how deep within bogus complaints that legitimate claim may be buried, once made in good faith, employers must proceed with caution, particularly before taking any action that can be seen as retaliatory.

For the last few years, retaliation continues to be the number one claim that employees are filing with the Equal Employment Opportunity Commission (EEOC).  The EEOC is a federal agency responsible for enforcing claims of discrimination and harassment under Title VII of the Civil Rights Act of 1964. In a nutshell, Title VII prohibits employment discrimination based on race, color religion, sex and national origin. More on that later. This law, and other similar laws, enforced by the EEOC often contain anti-retaliation provisions which forbid employers from taking an adverse employment action against an employee who files a claim or makes a complaint of possible discrimination or harassment at work.  Last year, the EEOC reported that approximately 94,000 claims were filed with the agency against employers.  Of those claims, 41.1% were retaliation claims.  That is already up 1.9% from 2012.

You are probably wondering, “What does retaliation actually mean?”  Think of it this way.  We all know that employees have certain rights in the workplace.  Title VII was one of the first laws to provide these rights.  It gave employees the right to be free from harassment and discrimination based upon membership in a protected class (i.e. race, color, national origin, religion and sex).  Many other employment laws, such as the Fair Labor Standards Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, provide employees with additional rights in the workplace.  All of these laws contain an anti-retaliation provision which makes it illegal for employers to take an adverse employment action against an employee if they make a complaint, exercise their rights or participate as a witness in an investigation thereunder.  Examples of “adverse employment actions” are a termination, demotion, refusal to hire, denial of a promotion, or any other negative employment action such as unjust negative evaluations or references.

To clarify the principle of retaliation, let’s look at the classic example.  A female secretary gets sexually harassed at work by her supervisor.  She reports him to upper management.  When the supervisor learns that she has complained about him, which she had the legal right to do under Title VII which forbids sexual harassment in the workplace, he decides to demote her and cut her pay.  Now, she not only has a claim against the employer for sexual harassment, but she also has a claim for retaliation.

Experts speculate as to why retaliation claims continue to be the number one claim filed with the EEOC.  One reason may be that the courts continue to broaden anti-retaliation coverage and protection for employees. For example, the U.S. Supreme Court in Robinson v. Shell Oil Co. expanded the definition of “employee” was also  a former employee.   In addition, in Thompson v. North American Stainless, the Court extended protection to an employee who was discharged because her fiancé, a co-worker, filed a charge with the EEOC. 

Conceivably, the role of human nature may also be to blame here.  Many scholarly articles have been written addressing our natural predisposition toward reciprocity and retaliation. To put it in more common terms, we seem to want to “get even”.  Perhaps the “Pessimistic Pattys or Pauls” of the world may have it right in their thinking that not everything in life can be viewed with undue optimism.  To think that reporting misconduct on the part of a co-worker, or the boss for that matter, will not be met with resistance and/or revenge may be foolish.  However, employers should think twice before deciding to settle the score with these employees. Such rash actions are likely to land them in federal court for violating anti-retaliation laws.

Another factor that may be contributing to this rise in retaliation claims is a lack of awareness by employers.  I have spoken to many employers throughout the course of my career.  The number of employers unacquainted with this principle continues to surprise me.  Often times, management is not trained about this provision of the law so they may not know that actions that can be interpreted as vengeance are illegal.  Training in this area is therefore imperative considering it’s one of an employer’s biggest areas of exposure. 

One small silver lining in these anti-retaliation clouds may be this:  In June of 2013, the U.S. Supreme Court toughened the standard for proof of a retaliation claim.  In University of Texas Southwestern Medical Center v. Nassar, the Court held that employees must prove that the adverse employment action they suffered would not have happened “but-for” the protected activity in which they engaged.  This standard makes it harder for a plaintiff to prove that the action taken by the employer was retaliatory since it provides the employer with the opportunity to validate its legitimate business reasons for its employment decision. 

However, the take away from the Nassar case should not be that retaliation claims are dead just because the Court tightened its legal reins.  Rather, the lesson to be learned is that retaliation is and will continue to be the largest legal risk for employers from an employment law perspective.  These claims continue to be filed by employees at a rapid fire pace.  Even if Nassar makes retaliation claims harder to prove, nothing in Nassar prevents them from being filed, which is obvious from EEOC statistics.  Employers are therefore wise to educate and train management about retaliation since they are most likely the ones to engage in it.  Still not sure? Consider just the administrative time and attorney’s fees that will be spent fighting off one of these claims.    In the event that your chronic complainer actually has a legitimate gripe and they win, the repercussions will be even more costly.

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