Tag Archives: retaliation claims

Documenting Employee Performance Problems May Become Key Defense in Future Retaliation Claims

Contributed by Allison P. Sues, September 10, 2019

Employee performance evaluation form on a desk.

According to the U.S. Equal Employment Opportunity Commission (EEOC), retaliation claims continue to be the most frequently filed charges of discrimination at the federal agency by far. According to the EEOC’s Fiscal Year 2018 Enforcement and Litigation Data, retaliation claims made up 51.6 percent of all charges filed last year. Given their frequency, employers should be as proactive as possible in protecting themselves from these claims.

The Seventh Circuit recently affirmed summary judgment in a Title VII retaliation case, and in doing so sent a reminder to employers about the importance of properly documenting employee performance concerns. In Rozumalski v. W.F. Baird and Associates, Ltd., the Seventh Circuit held that the plaintiff could not establish her retaliation claim due to an “insurmountable problem with timing,” where her employer was able to point to negative performance feedback that predated any of her protected activity. Indeed, an employer may be able to negate an inference that it disciplined an employee because he engaged in protected activity if it can point to documentation of its concerns forming the basis for the discipline before the employee ever complained of discrimination or harassment. 

Creating strong records of employee performance problems may serve as a strong defense to future retaliation claims. Employers should keep the following in mind regarding job evaluations and other documentation:

  • All concerns with employee performance should be documented in writing, even including verbal counseling on performance issues.
  • Documentation should avoid vague references to performance problems. For example, performance evaluations should not note problems such as “bad attitude” or “not a culture fit.”  These vague criticisms are too subjective and do not provide adequate coaching to the employee on what needs to be improved. Instead, employers should list specific examples of performance or attitude problems and the dates on which they occurred.
  • Evaluations of job performance should never include personal attacks. The documentation should focus on the performance problem – not the individual.  For example, rather than telling an employee that they are a very disorganized person, instruct the employee on what files or work matters need to be reviewed and filed or maintained in a more orderly fashion. 
  • Company expectations also need to be defined through concrete instructions.  For example, rather than vaguely instructing an employee to always be on time, the documentation should note that the employee is expected to be present and ready every Monday for the daily 9 am meeting. 
  • Each criticism of an employee’s job performance should be paired with specific coaching on how to improve and a deadline by which the employer expects the improvement to be achieved.
  • Documentation should communicate that the employer is taking the performance problem seriously. This can be done by the employer following up on the problem to ensure it has been improved. The employer should also explain the specific consequences for not improving the performance problem by a certain date.
  • Employee coaching or performance evaluations should allow for two-way communication between the employee and the employer so a discussion can occur regarding the problems and expected solutions. Documentation of the coaching or evaluation should confirm that the employee had an opportunity to discuss the issue.
  • Documentation should be created so that a third party with no knowledge of the specific issues can understand the performance problem and the expected improvement. The documentation should give enough information to provide context to the issue and fully explain the circumstances.

Seventh Circuit Opinion Confirms Flexible Analysis of Adverse Employment Actions

Contributed by Allison Sues, November 9, 2016

On October 19, 2016, the United States Court of Appeals for the Seventh Circuit reversed a District Court’s Rule 12(b) (6) dismissal of two plaintiffs’ retaliation claims brought under Title VII and the Illinois Human Rights Act. In Volling and Springer v. Kurtz Paramedic Services, Inc., Case No. 15-3572, two Emergency Medical Technicians (EMTs) alleged that their employer and its new subcontractor refused to hire them because they had reported and/or supported claims of sex discrimination and sexual harassment against the employer’s previous subcontractor to the Equal Employment Opportunity Commission.

gavelbwThe new subcontractor filed a motion to dismiss, arguing that the plaintiffs had not stated a viable retaliatory failure-to-hire claim because the plaintiffs had not applied for the position that they claimed they were denied. The District Court dismissed the retaliation claims after referring to the prima facie case for a retaliatory failure to hire, which required the plaintiffs to allege that they applied for and were qualified for the position sought.

On review, the Seventh Circuit examined the circumstances under which the plaintiffs claimed to have been refused a position to determine whether they alleged an adverse employment action distinct from a straightforward failure-to-hire claim. In this case, the employer terminated its contract with the previous subcontractor following the plaintiffs’ reports of misconduct and replaced it with a new subcontractor. The employer informed all the EMTs who had worked with the previous subcontractor, with the exception of the two plaintiffs, on how to apply for unpublished vacancies with the new subcontractor. The new subcontractor hired all of these applicants. The plaintiffs never applied and were not hired. The Seventh Circuit reasoned that the plaintiffs alleged a discriminatory practice slightly different than a failure to hire – the failure to inform them of the vacancies where other employees who had not engaged in protected activity received notice of the positions. The Seventh Circuit stated, “plaintiffs’ failure to apply stemmed from the very discriminatory practice they complained of, and their failure to apply need not bar their retaliation claims.”

Employers should note that a court’s analysis of retaliation claims may be flexible and stretch outside confines of oft-repeated prima facie cases. Discrimination and retaliation claims can stem from not only a failure to hire an applicant because of his or her protected characteristic or prior protected activity, but also for any disparate treatment in the way employers publicize or recruit for the position prior to the hiring decision.

Retaliation Claims are the New Race Discrimination Claims

Contributed by Jill Cheskes

Retaliation Claims v. Discrimination ClaimsHistorically speaking, race discrimination claims have been the most frequent type of claim brought before the EEOC year after year.  While the percentage of race claims has remained pretty constant since 1997 (about 36% of all charges filed with the EEOC), the percentage of retaliation claims has risen dramatically from 22.6% in 1997 to 36.3% in 2010 – surpassing the number of race discrimination claims for the first time. 

Retaliation claims, which essentially involve an employee complaining of discrimination and then suffering some sort of adverse action, like a termination, have long been considered more troublesome for employers than straight discrimination claims are.  This is because the underlying claim of discrimination need not be a valid claim at all, the employee need only have a good faith belief that he or she suffered discrimination.  This is not a high hurdle.

Additionally, the Supreme Court made these claims even easier in 2006 when it held that an adverse action is defined as anything that might dissuade a reasonable employee from making a complaint.  Prior to this holding, most courts required that in order for an action by the employer to be “adverse,” the action would have to cause some sort of tangible effect, such as a pay loss.  Today, anything that could dissuade an employee, whether it has a tangible effect on employment or not, could be considered retaliation.  This lower standard has been evident in several cases already.  For example, a case out of Wisconsin found that a situation where an employee was only threatened with discharge, but not actually discharged, suspended or even disciplined, was sufficient to state a claim for retaliation.  Employers beware!