Increase of Retalia7on Claims

Transcription

1 It s Getting Loud in Here! Jason A. Fogg Monitor Liability Managers, Inc. Joanne Ciminera CNA Global Specialty lines Joseph A. Starr Starr, Butler, Alexopoulos & Stoner Ben Mathis Freeman Mathis & Gary, LLP Increase of Retalia7on Claims Year Percent of EEOC charges % % % % % % % % % Increase of Retalia7on Claims Retalia7on now exceeds race as most frequently EEOC charge Since Burlington Northern decision, 22% increase in retalia7on claims 1

2 Recent Jury Verdicts for Retalia7on Claims $4,000,000 (C.D. Cal.) (Nov. 2010): Police officer terminated in retalia7on for whistleblowing $3,100,000 (W.D. Penn.) (Nov. 2009): Female employee terminated a[er complaining about gender discrimina7on $1,555,000 (M.D. Tenn.) (Jan. 2010): Plain7ff terminated a[er par7cipa7ng in sexual harassment inves7ga7on $1,100,000 (W.D. Wis.) (May 2011): College instructor's contract not renewed in retalia7on for discrimina7on claims $1,026,386 (C.D. Il.) (Aug. 2010): Public library opera7ons manager alleged Title VII retalia7on Familiar Retalia7on Statutes Covers Title VII Protected Classes (race/ gender/nationality etc.) 42 U.S.C All Employers Age Discrimination in Employment Americans with Disabilities Ages 40+ Disabled Family Medical Leave Leave for Medical/Family Reasons Fair Labor Standards Wage/House Violations OSHA Enforced Retalia7on Statutes Food Safety Modernization Aviation Investment Energy Reorganization Federal Rail Safety National Transit System Consumer Product Safety Primarily Impacts Food Industry Airline Industry Nuclear Power Industry Rail Industry Mass Transit Industry Retail Industry 2

3 New or Recently Modified Statutes DOD Reauthorization American Recovery and Reinvestment False Claims Primarily Impacts Defense Contractors Recipient of Stimulus Funds Federal Contractors Sarbanes-Oxley Patient Protection and Affordable Care Dodd-Frank Publicly Traded Corps. Health Care Industry Publicly Traded Companies and Private Subsidiaries/ Affiliates Even More Retalia7on Statutes Occupational Safety and Health Surface Transportation Assistance Asbestos Hazard Emergency Response International Safe Container Clean Air Safe Drinking Water Workplace Safety Primarily Impacts Independent Contractors in Trucking Public Schools Shipping Industry EPA Regulated Industry EPA Regulated Industry Wendell H. Ford Aviation Investment and Reform for the 21st Century Air Carriers Pipeline Safety Pipeline facilities The Future New Protec7ons Dodd- Frank and New SEC Rules Bounty provisions for informa7on to SEC Jury trials/no arbitra7on Sarbanes- Oxley a[er Dodd- Frank Federal mail, wire, bank or securi7es fraud statutes Any rule/regula7on of SEC Jury trials/no arbitra7on Pa7ent Protec7on and Affordability Care Primarily health care and insurance Covers discrimina7on in compensa7on, training, privileges of employment 3

4 Burlington Northern v. White, 548 U.S. 53 (2006) A[er complaining about supervisor, plain7ff reassigned to a less desirable job Co- workers felt more senior man should hold plain7ff s former posi7on HELD: Retaliatory conduct encompasses acts might have dissuaded a reasonable worker from making or suppor7ng a charge of discrimina7on Gomez- Perez v. Po6er, 553 U.S. 474 (2008) A[er postal worker filed age EEOC charge, her name wrimen on an7- sexual harassment posters HELD: ADEA has implied provision prohibi7ng retalia7on against employees who complain of age discrimina7on CBOCS West, Inc. v. Humphries, 533 U.S. 442 (2008) Humphries, African- American employee, claimed he was fired because of racial bias General manager allegedly said all African- Americans are drunk or high on drugs HELD: 42 U.S.C has an implied an7- retalia7on provision 4

5 Crawford v. Metropolitan, 555 U.S. 271 (2009) During internal inves7ga7on ini7ated by someone else, Crawford contended alleged harasser grabbed her head and pulled it to his crotch Crawford and two other accusers fired soon a[er inves7ga7on HELD: Employee s act of answering ques7ons during internal inves7ga7on protected ac7vity under the opposi7on clause. Thompson v. North American Stainless, LP, 131 S. Ct. 863 (2011) Thompson and fiancé, whose rela7onship was common knowledge, both worked at N. Amer. Stainless ( NAS ) Thompson fired three weeks a[er fiancé filed gender discrimina7on charge HELD: Text of Title VII does not limit defini7on of person to be aggrieved to person who was subject of unlawful retalia7on What is Materially Adverse Conduct? D.C. Circuit Employer s false report contes7ng an employee s applica7on for unemployment benefits Second Circuit Reading newspaper ar7cle about discrimina7on lawsuit in the employee s presence Third Circuit Threatening to make employee s life a living nightmare Fourth Circuit Denial of employee s request to work from home as a result of health problems triggered by complica7ons from pregnancy 5

6 What is Materially Adverse Conduct? Sixth Circuit Performance evalua7on that diminishes employee s earning capacity or impacts wages Ninth Circuit Considered collec7vely, temporary removal from du7es, a psychiatric evalua7on, and internal affairs inves7ga7on of employee Tenth Circuit Threatening to make public rumors about employees sexual ac7vi7es Cri7cal Issues for Claims Case Analysis: Focus on retalia7on elements and not just underlying claim Materially Adverse: Does that affect S.J. predic7on Plain7ff s Evidence: Understand plain7ff s circumstan7al evidence argument Causa7on: Temporal proximity is key factor Damage Analysis: Even more important than usual Risk Management Clear an7- retalia7on policy (broader than Title VII) Complaint process outside of just supervisors (HR, Compliance, General Counsel) Consider using special inves7gator HR can create a temporary repor7ng structure to avoid fric7on between employees Only relocate workspaces if the employee requests it Talk to your amorneys 6