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Tit-for-tat: How retaliation is causing costly workplace lawsuits

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Anna M. Dailey Anna M. Dailey
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Anna M. Dailey is a Partner and member of the board of directors at the law firm Dinsmore & Shohl LLP. Dailey has been practicing labor and employment law for more than 30 years, representing clients from a variety of industries, including energy, manufacturing and health care. She works to protect their assets and reputation while navigating through challenges and managing risk. Dailey also has represented clients in the coal industry in whistleblower claims relating to safety violations under MSHA. She can be reached at anna.dailey@dinsmore.com.

Primates do it. Humans do it. Even kids in kindergarden do it. We know we shouldn't, but it is hard-wired in our nature. We think if we don't, we may be seen as easy prey. 

Human beings retaliate in response to both real and perceived injustices. Because we know we should not, we tend to deny we would ever do that at work, but we also assume others are not so noble. Retaliation or revenge is ingrained in our psyche, reinforced by television dramas that build storylines around it, news stories that sensationalize it and advertising by attorneys who promise to remedy every perceived wrong in the workplace.

Our tit-for-tat reaction is so entrenched in our human nature that it is spawning new causes of action every year and millions of dollars in jury verdicts against employers. They are called different things — retaliatory discrimination, whistleblower cases, workers' comp discrimination, qui tam actions — but they all share the same common elements: there was negative job action taken toward someone after they made a complaint or exercised a right in the workplace. These retaliatory claims are ever more frequent and costly. 

At the Equal Employment Opportunity Commission, retaliation claims have been outpacing all other claims and in 2013, accounting for 41 percent of all claims filed. 

Employment Practices Liability Insurance, carriers, have said retaliation cases are quickly becoming the number one costly claim. 

West Virginia is no exception, and no employer is immune. Recently, a railroad was hit with a $2 million verdict when a jury believed the real reason for a discharge was because the employee had complained about sexual harassment. A coal company was hit with a $1.9 million verdict when a jury found a coal miner was likely discharged in retaliation for how he handled his workplace injury. In Kanawha County, a hospital was hammered with a $2 million verdict when the jury believed a nurse was probably discharged because of her frequent complaints about hospital practices. 

Many safety conscious companies encourage employees to identify potential hazards in the workplace as they arise, using safety meetings or comment cards, among other processes. However, later negative job consequences to someone who identified a problem will prompt questions about whether retaliation was the motivation, even when the negative consequence is the result of legitimate discipline. Layoffs can create even more difficult situations, as the selection process will be second-guessed. 

Obviously, management teams and HR professionals are facing a significant challenge: How can employers prevent tit-for-tat workplace conduct, as well as avoid the perception of it when workplace disciplines are legitimate and not retaliatory? 

Changing human nature takes a top-down policy and a team approach. An employer needs to put in place best practices that restrain managers and supervisors from retaliation in order to provide the employer with the evidence necessary, when sued, to convince jurors that it did not occur in the case before them. 

This requires: 

 

  • Well-publicized policies against retaliatory actions; 
  • Training of supervisors and managers regarding that policy; 
  • A system whereby employees can file complaints if they believe they have been the subject of retaliation; 
  • Procedures for investigating and documenting the investigation and findings;
  • A willingness to provide additional counseling to a frontline supervisor or co-workers who may be singling out the whistleblower; 
  • Engaging in an independent review of disciplinary actions taken against persons that have previously made workplace complaints; and 
  • Vetting with legal counsel. 

 

In going through an appropriate review, always ask the tough questions that an unbiased observer would ask. Make sure there is no differential or disparate treatment toward the whistleblower. Because tit-for-tat is so ingrained in our human nature, timing is often a critical element of retaliation claims. Thus, any discipline that is temporally proximate to the protected activity will be suspect. 

Overcoming human nature is hard; so is overcoming the perception of retaliation, even when there is a legitimate basis and no retaliatory motive. Making the effort to overcome this aspect of human nature in the workplace is not only worthwhile, but vital to protecting your business.