Avoid Costly Retaliation Claims

January 31, 2019

For the past decade, retaliation has been the No. 1 complaint filed with the U.S. Equal Employment Opportunity Commission (EEOC). Charges attributable to retaliation increased from 34 percent in 2008 to nearly 49 percent in 2017. That trend is likely to continue “because retaliation claims are relatively easy to make,” said Hillary Pettegrew, senior risk management counsel and former claims attorney at United Educators who has researched retaliation claims and EEOC enforcement guidance.

These complaints can involve educational institutions as well as corporations. For example, in 2017 the EEOC filed a lawsuit against a university for treating two black employees differently because of their race and then firing them for complaining about the discrimination. The EEOC said it is seeking back pay, and compensatory and punitive damages.

Retaliation claims can be financially damaging to educational institutions from jury awards and legal fees. Jurors tend to award significant monetary damages against employers who retaliate against an employee who was speaking up for his or her rights or those of someone else, Pettegrew said. Also, jurors may hold educational institutions to a higher standard of behavior than other employers and award higher damages for failure to meet their expectations.

In one case, a jury awarded $36 million to two college administrators who alleged that they were fired in retaliation for reporting theft of government property at the institution. A judge later reduced the award to $2.3 million, still a significant loss.

These cases don’t have to reach court to become costly. “Attorneys on both sides realize that credible retaliation allegations drive up the settlement value,” Pettegrew said. In addition, the institution could suffer reputational damage in the community and among its employees.

Institutions are focusing more attention on workplace harassment prevention and training; make sure those efforts include strong prohibitions against retaliation toward accusers. Pettegrew recommends that institutions include in written anti-discrimination policies a clear statement that retaliation is also prohibited against anyone making a complaint or involved in another person’s complaint and will be treated as a separate act of discrimination. Include examples of actions that may constitute retaliation.

In addition, explain clearly in the policy how and to whom employees should report any allegations of retaliation. Institutions should also train supervisors and employees on harassment prevention, incorporating brief hypothetical scenarios for discussion. Document attendance at the training.

Mosaic: Prevent Discrimination, Harassment, and Sexual Violence (Higher Ed)
Mosaic: Prevent Discrimination and Harassment (K-12)