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Employee-friendly U.S. Supreme Court decisions on retaliation and legislative changes to the Americans with Disabilities Act (ADA) that occurred years ago are still boosting the number of charges filed with the Equal Employment Opportunity Commission (EEOC). However, employers can take steps to reduce the likelihood that they will get hit with those types of charges, legal experts say.
Retaliation charges increased by nearly 5 percent in 2015, rising from 37,955 charges in 2014 to 39,757 last year, according to EEOC enforcement data released Feb. 11. ADA claims rose by 6 percent, from 25,369 in 2014 to 26,968 in 2015, surpassing gender discrimination charges as the third most common type of allegation. Retaliation remains first, and race discrimination is second. Overall charges rose from 88,778 in 2014 to 89,385 in 2015.
The upward trend in retaliation claims is due to the Supreme Court deciding every retaliation case before it in the last 10 years in favor of employees, said Frank Morris Jr., an attorney with Epstein Becker Green in Washington, D.C. ADA claims continue to rise because of the ADA Amendments Act of 2008, which expanded the definition of “disability,” he added.
Staving Off Retaliation Claims
Many jurors believe retaliation is commonplace, said Michael Reiss, an attorney with Davis Wright Tremaine in Seattle.
And employers should expect to see more retaliation claims in light of the EEOC’s Jan. 21 proposed guidance, which broadly interpreted “retaliation,” noted Bernard Tisdale, an attorney with Ogletree Deakins in Charlotte, N.C.
So, employers should have a specific policy that retaliation against anyone in response to a complaint or investigation will not be tolerated, Morris said. Threatened retaliation should be prohibited as well.
When a lawsuit by an employee includes claims against a manager, that manager should be “intensively trained” on the law’s prohibition on retaliation. Thoughts about retaliation may be a natural reaction, but the manager must not take action along those lines, Morris noted.
If an employer receives a complaint of discriminatory activity, it should properly and promptly investigate and take appropriate action. This might prevent the claim from escalating into a retaliation claim. In addition, the information gathered may help an employer make smart decisions about how to handle the claim (e.g., whether to settle a claim early through mediation), depending on how big a problem it is, noted James Hux Jr., an attorney with Fisher & Phillips in Chicago.
If a discrimination charge has been filed and the supervisor wants to discipline the employee who brought the charge, HR needs to review the proposed discipline to determine whether the action is retaliation rather than merited. That includes analysis of whether a rule, such as a tardiness or absenteeism rule, is being enforced more harshly against the employee than it typically is against others, Morris explained.
Discipline may go forward in some cases, Reiss noted, saying that the filing of a claim isn’t a get-out-of-jail-free card.
Discipline just needs to be consistent and fair, Hux agreed.
Just as some supervisory training may be in order to prevent retaliation claims, ADA claims can be reduced through managerial training as well. Specifically, supervisors need to be trained to recognize an accommodation request even when an employee doesn’t use the words “reasonable accommodation,” Morris noted.
Front-line supervisors also should be trained to immediately get HR involved when someone comes forward with an accommodation request, Reiss said. The reason? Supervisors may be afraid to ask anything, but HR will know that an employer can legitimately ask for documentation of a disability if it is not apparent and an accommodation has been requested.
ADA cases today are more often about what took place in the interactive process for identifying a reasonable accommodation than about whether a disability is covered by the law. So, employers should have protocols in place on how to respond to accommodation requests and should document those efforts. This is “incredibly important” if there is litigation, Morris said.
If there is an agreement on an accommodation, put it in writing and have the employee sign the document, he recommended.
Remember that under the ADA, the accommodation obligation is ongoing. “Just because you’d done everything right in 2015 doesn’t mean you don’t need to do everything right in 2016,” he said. Things change, and the employer should be ready to start the accommodation conversation on fresh footing if the employee requests a new accommodation.
“Treat all assertions of disability seriously,” said Stanley Pitts, an attorney with Honigman in Detroit. “Be consistent in handling such claims, and if you choose to keep accommodation records, be sure they are complete.”
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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