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Posts Tagged ‘retaliation’

EEOC Releases Charge Data And Guess What — Retaliation Is The Most Frequently Filed Claim with the EEOC in 2019

Posted on: February 14th, 2020

By: Brent Bean

The Equal Opportunity Employment Commission recently released its 2019 enforcement statistics.  The EEOC is the administrative agency and gatekeeper for employment law claims asserted under Title VII of the Civil Rights Act of 1964.  The EEOC receives charges of discrimination which typically allege such claims as race, disability discrimination or sex harassment.  Notable among the types of charges the Commission received last year, claims of retaliation were the most frequently filed.  Of the over 72,000 charges the EEOC received in 2019, 53.8% articulated claims for retaliation, the most of any type of claim made.

Awareness that retaliation claims are the most frequently filed charge is important for employers in not only fashioning their workplace policies and procedures, but also in implementing training to avoid such claims.  Retaliation occurs, generally speaking, when the employee engages in some type of protected activity, after which the employer takes adverse employment action again the employee.  Lastly, the employee has to show the adverse action would not have occurred but for the protected activity.  Employers’ procedures for investigating workplace claims of discrimination or harassment, along with their policies for documenting not only those investigations but also employee discipline, are key to defending and defeating retaliation claims.

Also noteworthy, the EEOC’s enforcement numbers decreased in 2019.  The Commission filed  157 lawsuits last year, down from 217 in 2018.  Despite the decreased number of actual lawsuits filed, the EEOC’s statistics indicate that enforcement activity continues at a steady clip.  The takeaway is that employers need to be diligent in implementing and updating their workplace training and management practices.

Finally, EEOC’s 2019 statistics show the number of charges filed alleging LGBTQ-based sex discrimination continues to increase.  These charges grew to 1,868 charges in 2019, up 3% from 2018. The Supreme Court heard oral argument on a trio of LGBTQ-based cases in October 2019 and a ruling on whether these claims are viable under Title VII is expected in late Spring or early summer this year.

If you have any questions about workplace training, handbooks and developing compliant policies and procedures, please contact Brent Bean at [email protected].

The California State Bar’s New Rule Follows a National Trend of Disciplining Attorneys for Discrimination

Posted on: August 24th, 2018

By: Paige Pembrook

The newly revised California Rules of Professional Conduct for attorneys, set to take effect November 1, 2018, include a tougher approach to discrimination, harassment, and retaliation in legal practice that exposes attorneys to State Bar discipline even where there has been no prior court determination of any wrongful conduct. The new rule is part of a national trend prohibiting discrimination as attorney misconduct.

Current Rule 2-400 that applies through October 2018 prohibits discrimination and harassment in connection with the management or operation of a law practice. Once a court determines that an attorney has committed unlawful discrimination and/or harassment, the State Bar can investigate and impose discipline. Given that no discipline appears to have been imposed under the current rule in the thirty years since its enactment in 1989, the new rule has teeth to allow for greater enforcement.

New Rule 8.4.1 replaces and fundamentally changes the current rule to expand attorneys’ exposure to State Bar discipline for discriminatory conduct. First, Rule 8.4.1 expands the scope of wrongful conduct to explicitly prohibit retaliation as well as discrimination and harassment. Second, Rule 8.4.1 prohibits all such conduct in connection with the representation of a client, the termination or refusal to accept the representation of any client, and law firm operations, whereas the current rule only prohibits conduct in connection with the management or operation of a law practice. Finally, Rule 8.4.1 eliminates the current requirement that there be a prior adjudication by a court that unlawful discrimination occurred before the State Bar can commence an investigation or impose discipline on an attorney for such discrimination.

The elimination of the requirement of a court adjudication of wrongdoing prior to State Bar investigation and discipline is the most drastic and contested change in the rule. Essentially, the State Bar Court becomes a forum of first resort for alleged victims of discriminatory, harassing, or retaliatory conduct by attorneys, despite the State Bar Court having limited resources and due process protections. Concern over the elimination of the prior adjudication requirement led to a new self-reporting requirement for attorneys who receive notice of disciplinary charges for violating Rule 8.4.1. It requires such attorneys to provide the disciplinary charges to the California Department of Fair Employment and Housing, the U.S. Department of Justice, or the U.S. Equal Employment Opportunity Commission, allowing the agencies to become involved and institute parallel administrative or judicial proceedings stemming from the same conduct. Attorneys must also report such parallel proceedings to the State Bar, allowing it to step aside so that the appropriate court or agency can adjudicate the matter.

In sum, the new rule is harsh. The comments to the new rule make clear that it permits the imposition of discipline for conduct that would not necessarily result in an award or remedy in a civil proceeding. Any person (including but not limited to prospective, former, and current employees, clients, and opposing counsel) can file complaints alleging discrimination with the State Bar that trigger investigations and discipline up to and including disbarment. Disciplinary charges may also trigger reporting requirements to government agencies that may lead to further investigations and proceedings.  Discipline for misconduct can also serve as evidence in a legal malpractice claim, demonstrating that an attorney fell below the standard of care. For example, if an attorney’s harassment of a firm employee resulted in that employee missing critical deadlines that impacted the outcome of a client’s matter, State Bar discipline based on that harassment may be evidence in a malpractice action against the attorney.

Although California has had a rule prohibiting discrimination since 1989, the reinforced new Rule 8.4.1 is part of a national trend prohibiting discrimination in the practice of law. In 2016, the ABA approved Model Rule 8.4(g) that makes it professional misconduct to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination. Twenty states already have provisions in their attorney conduct rules addressing the subject of Model Rule 8.4 in some manner or adopting a version of Model Rule 8.4, including Colorado, Florida, Indiana, Ohio, New Jersey, New York, Michigan, Minnesota, Vermont, and the District of Columbia, to name a few.

California’s new Rule 8.4.1 is one of the strongest prohibitions and goes far beyond the ABA’s Model Rule 8.4 in policing discriminatory misconduct by attorneys. However, other states are likely to follow the ABA and California’s lead in increasing the State Bar’s powers to discipline attorneys for discrimination, retaliation, and harassment. Accordingly, all attorneys should be wary that conduct that was previously considered a professional discourtesy may be actionable misconduct that will lead to discipline, and any resulting discipline may provide evidence of attorney malpractice.

If you have any questions or would like more information, please contact Paige Pembrook at [email protected].

NLRB Provides Guidance on Investigation Confidentiality Policies

Posted on: April 22nd, 2013

By: Anthony Del Rio

In July 2012, the National Labor Relations Board (“NLRB”) ruled that a blanket policy requiring confidentiality during all internal workplace investigations violates employees’ rights under Section 7 of the National Labor Relations Act (“NLRA”). The ruling represented a somewhat conflicting position, because one of the primary reasons confidentiality provisions were put in place was to protect employees and witnesses from retaliation.

This past week, the NLRB released an a memorandum that provides guidance on what it considers permissible confidentiality policies in workplace investigations. The NLRB’s memo suggests that, rather than using language that requires all investigations mandate confidentiality, policies should use the following language:

[Employer] may decide in some circumstances that in order to [protect the integrity of an investigation and to protect witnesses from harassment/retaliation], we must maintain the investigation and our role in it in strict confidence. If [Employer] reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

Confidentiality in employer investigations is key in order to protect both the employer and the employee. For that reason, a confidentiality provision that has actual force to it is necessary. However, at the same time, avoiding the scrutiny of the NLRB is also very important. For that reason, employers should consider reviewing and modifying their current policies to conform with the language suggested in the NLRB’s memorandum.

Furthermore, as we suggested in our prior coverage of this issue, before prohibiting employees from discussing pending investigations, employers must consider whether there is a real need for confidentiality based on risks of witness coercion, destruction of evidence, or other legitimate business concerns. Blanket prohibitions against discussion of internal investigations without this type of individualized assessment will likely violate Section 7 of the NLRA.

Liquidated Damages are Discretionary in FLSA Retaliation Case

Posted on: March 22nd, 2013

By: Joyce Mocek

The Eleventh Circuit Court of Appeals recently held that the standard for awarding plaintiffs liquidated damages in a retaliation claim under the Fair Labor Standards Act (FLSA) is different from that used for claims of minimum wage or overtime violations. In Moore v. Appliance Direct, Inc., No. 11-CV-15227 (11th Cir. Feb. 13, 2013), the Eleventh Circuit, in a case of first impression, affirmed a Florida district court’s decision not to award liquidated damages, because such damages would not be appropriate. Although the plaintiffs won on their FLSA retaliation claim, the court held that they were not able to recover liquidated damages because these damages were discretionary, not mandatory.

Under the FLSA, for claims for failure to pay overtime or minimum wages, the plaintiff shall be awarded liquidated damages unless an employer can show proof of a reasonable good faith exception.  Liquidated damages are generally the rule, not the exception.  In Moore, the Eleventh Circuit held that the district court had the discretion after reviewing the facts of the retaliation FLSA claims to determine whether it was appropriate to award, or not to award, liquidated damages. With this ruling, the Eleventh Circuit joins the Sixth and Eighth Circuits in holding that an employer does not have to show proof of a reasonable good faith exception to avoid liquidated damages in an FLSA retaliation claim. Thus, employers may still have to pay liquidated damages, but the burden is initially on the employee to show that awarding liquidated damages is appropriate. This is an important development for employers since FLSA claims are on the rise.

The Court in Moore also reviewed the issue of whether owners and executives can be held individually liable under the FLSA and maintained that the CEO (who was a 75 percent owner of the company) could be held individually liable to the plaintiffs for the FLSA retaliation claims. Thus, although company officials or managers cannot be held individually liable under several employment laws, the Court reminded owners that control their business that depending on the circumstances they can still be held liable in FLSA retaliation cases.

Retaliatory Hostile Work Environment Claim Recognized by Eleventh Circuit

Posted on: June 18th, 2012

By: Joyce Mocek

In a case of first impression for the Eleventh Circuit, the Court in Gowski v. Peake held that a retaliatory hostile work environment was a viable claim.  The Court also noted that although discrete acts cannot alone form the basis of a hostile work environment claim, the jury could consider discrete acts as part of a hostile work environment claim.  This holding is significant for many reasons, not least of which because the number of retaliation claims continue to increase dramatically.

In its June 2, 2011 decision, the Eleventh Circuit noted in Gowski that it had not yet recognized a retaliatory hostile work environment claim, although every other circuit had.  Thus, the Court held recognizing such a cause of action was consistent with the statutory text, congressional text, and the EEOC’s own interpretation of Title VII.    

The defendants argued that discrete acts alone could not be considered as part of the hostile environment because, where the jury applied the same decision defense, the retaliatory intent was not the “but-for” cause.  The Court stated that although the defendants were correct that retaliation must be the “but for” cause, the same-decision defense did not eliminate causation in a hostile work environment claim.  It held that, although the same-decision defense eliminates but-for causation for each discrete action, it does not eliminate the but-for causation that matters in retaliatory hostile work environment claims.  The Court stated that “allowing the same-decision defense to eliminate but-for causation in a hostile work environment claim would essentially do away with the claim.”

This recent decision shows the continuing trend in the Eleventh Circuit and other circuits toward allowing retaliation claims.  We anticipate that employers will see more and more retaliation claims, and they must continue to properly investigate all allegations of discrimination, harassment, and retaliation.  Employers must also be mindful of the potential ramifications of not properly addressing these claims.