NA Legal Precedence in The Areas of Retaliation and Sexual Harassment Essay Please use apa format and cite sources. Required word count 2500 words 4 scholarly sources. Please make sure response is original. The Employment-Supervisor Relationship Retaliation and Sexual Harassment: 1.Research sexual harassment and retaliation cases. Provide a timeline and a narrative of the cases that set legal precedence in the areas of retaliation and sexual harassment. 2.Discuss how these cases have shaped Human Resource Management policy and planning. Give two specific examples of strategies that have been shaped by sexual harassment or retaliation. The current issue and full text archive of this journal is available at
www.emeraldinsight.com/2040-7149.htm
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Retaliation: legal ramifications
and practical implications of
discriminatory acts in the
workplace
Angela Miles and Marka Fleming
G School of Business and Economics,
Department of Management,
North Carolina A&T State University,
A Greensboro, North Carolina, USA, and
Arlise P. McKinney
Department ofTBusiness Administration,
Joseph M. Bryan School
E of Business and Economics,
The University of North Carolina at Greensboro,
S
Greensboro, North Carolina, USA
Abstract
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Purpose – Retaliation complaints in the workplace have increased 71 percent in the past ten years
with a record high of more than 32,000 complaints filed in 2008. The purpose of this paper is to
review retaliation legislation to clarify for employers and employees the protected provisions and
provide guidance for complying with this important anti-discrimination statute to aid in promoting a
fair and unbiased work environment.
Design/methodology/approach – This paper reviews retaliation claims in cases of US
employment discrimination including the central elements and covered individuals. It also reviews
key recent rulings that have broadened what constitutes retaliation to better understand its impact in
workforce management practices. Equity and organizational justice theories are drawn upon to
address performance management and employee discipline issues that may arise in the workplace
and how organizational action may be impacted by the retaliation statute.
Findings – Retaliation is often considered to be an overt act (e.g. demotion or termination) but this
review demonstrates that adverse employment actions need not be overt or result from loss of job or
wages by the employee. This review can be used to avoid costly litigation but also convey that
retaliation statutes do not unduly influence the employer’s right to discipline employees.
Originality/value – This paper helps practitioners and researchers better understand retaliation
and its purpose in preventing unfair work practices. This historical review of retaliation should help
improve employer policies and procedures as well as training efforts in complying with equal
employment opportunity laws without compromising concerns related to productivity or disciplinary
procedures.
Keywords United States of America, Discrimination in employment, Legislation, Case law
Paper type General review
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The USA has provided significant
T acts of legislation to eliminate workplace
discrimination on the basis of race, color, sex, religion, national origin, age, and disability
among others. One aspect of protection
S that is often overlooked or misunderstood is
Equality, Diversity and Inclusion: An
International Journal
Vol. 29 No. 7, 2010
pp. 694-710
# Emerald Group Publishing Limited
2040-7149
DOI 10.1108/02610151011074416
retaliation. The retaliation statute was enacted to protect employees who file a complaint
of employment discrimination from negative actions by employers for exercising their
rights under equal employment laws. The possibility of experiencing retaliation may
discourage employees from engaging in activities that are protected under the law.
Likewise, employers may flinch in trepidation from the possibility of a discriminatory
lawsuit and react in ways that minimize or exaggerate the circumstances. These concerns
may be well-founded given that over the last few years, the number of retaliation claims
brought against employers has risen rapidly. In 2008, retaliation complaints in the USA
surpassed gender discrimination as the second most reported charge with the Equal
Employment Opportunity Commission (EEOC; www.eeoc.gov/statistics). The EEOC is
the regulatory agency for the enforcement of the major US equal employment
opportunity laws enacted to prevent workplace discrimination and investigate claims of
retaliation. According to the EEOC, retaliation claims have increased by 71 percent in the
past ten years and have steadily increased in each year with more than 32,000 complaints
issued in 2008 (www.eeoc.gov). Furthermore, retaliation complaints account for nearly
one-third of all cases reported to the agency.
The finding that retaliation claims have steadily
Gincreased over the past ten years
should heighten employer concerns for managing workplace behaviors. Further, the
Acases currently being filed in state
majority of discrimination and unlawful harassment
and federal courts include a retaliation component (Lieber, 2006). In addition to the
T
increase in the number of retaliation claims, the damages associated with these claims
are increasing. In 2008, the EEOC collected more than
E $111 million in damages based
on retaliation cases, not including monetary benefits obtained through litigation
S for retaliation damages to be
(www.eeoc.gov/stats). A recent example of the tendency
larger than they have been in the past was the ,widely publicized case of plaintiff
Anucha Browne Sanders who was awarded $11.6 million in punitive damages for the
sexual harassment she endured while employed with the New York Knicks and the
retaliation she experienced after complaining of this
Dharassment (Zambito, 2007). This
case represents one of the largest single plaintiff judgment awards in US history. In this
case, both the discriminatory act and retaliatory behaviors
were particularly egregious
E
and has served to highlight the need for a better understanding of retaliation in
the workplace. Indeed, the lack of understandingAand/or compliance with the antiretaliation statute is a business necessity issue thatN
has implications for organizational
reputation, performance management, as well as significant financial exposure.
The intent of this work is to review the legislationD
on retaliation to inform practitioners
of this issue and the importance of instituting policies,
Rprocedures, and practices to ensure
a fair and unbiased workplace as well as monetary consequences associated with noncompliance. Accordingly, in this review we seek to A
accomplish the following concerning
retaliation:
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explain its meaning;
.
review retaliatory acts in the workplace;
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provide strategies to prevent this form of discrimination;
and
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address performance management concerns including employee discipline with
an understanding of what acts may constitute3retaliation.
We begin with a review of historical legislation including
court cases and rulings on
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retaliatory behaviors that have implications for managers today. With the aid of legal
databases (e.g. Lexus Nexus Academic), cases S
were assembled using qualitative
.
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methodology assessing relevance, precedence, and recent occurrence. We specifically
reviewed US Supreme Court rulings because it is the highest court which sets the
precedent for all other courts and provide the greatest generalizability of the findings
concerning retaliation for organizations. We also conducted a literature review of
employment discrimination in management to evaluate the coverage of the retaliation
statute in prior research. The legal rulings provide the framework for this review,
which we use to address organizational implications for compliance. Analytically,
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managerial inferences were derived from the application of the equity theoretical
framework to support implications. We conclude this review by offering strategies for
managing workplace fairness by drawing on both equity theory and organizational
justice theories to promote effective performance management practices.
Employment discrimination
Equal employment opportunity laws are an important aspect of workforce management
and reviews of the major US federal laws exist including the Americans with Disabilities
Act of 1990 (Knapp et al., 2006), Affirmative Action (Crosby et al., 2006), Civil Rights
Acts, and the Age Discrimination inG
Employment Act of 1967 (Posthuma et al., 2006).
These reviews of equal employment opportunity legislation have generally focused on
the demographic characteristics thatA
have been associated with discriminatory acts in
the workplace including race, gender, and sexual harassment. Prior research has shown
T
that women and ethnic minorities account for the majority of discriminatory complaints
where race and/or gender have impacted
their employment outcomes (Berdahl and
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Moore, 2006; Konrad and Linnehan, 1999; Swim et al., 1995). Additionally, researchers
and practitioners have addressed ageS(Taylor and Walker, 1994), disability (Knapp et al.,
2006), and emerging issues in weight-based
discrimination (Roehling, 1999). Each of
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these forms of discrimination focus on a characteristic of the individual that form the
basis of subtle and overt actions against them in the workplace.
Though prior research has alsoDaddressed employment discrimination against
specific groups and provided some guidelines for handling employment discrimination
E retaliation has not been examined extensively
complaints (Bojorquez and Kleiner, 2005),
in management literature. For instance, prior literature reviews of discriminatory acts in
the workplace often include disparateAtreatment which is the purposeful discrimination
based on demographic categorizationN
and sexual harassment (Berdahl and Moore, 2006;
Lengnick-Hall, 1995; Lim and Cortina, 2005; Konrad and Linnehan, 1999; Portwood,
1995; Schein et al., 1996; Swim etDal., 1995). These studies have addressed the
differential treatment experienced byRmen and women in the workplace that has often
resulted in less favorable employment outcomes for women as well as ethnic minorities.
Aof employment discrimination in organizations,
In the Goldman et al.’s (2006) review
retaliation is only defined but not discussed as the review focuses primarily on
disparate treatment forms of discrimination. In Domagalski’s (2008) review of
employment discrimination, there was
1 no reference to retaliation. Furthermore, some
writers only link retaliation to Title VII of the Civil Rights Act of 1964 (Owens et al.,
2008), despite Supreme Court rulings1that expand its coverage (Gomez-Perez v. Potter,
2008; CBOCS West, Inc., v. Humphries,
2 2008) to other areas including the American
Discrimination in Employment Act (ADEA) of 1967 and the Americans with
Disabilities Act of 1990 (Louderback3and Narvid, 2008; Mitchell, 2009). Our review of
prior studies and legal cases reveal T
that though retaliation has been linked to specific
court rulings, it has not been adequately incorporated into our overall understanding of
employment discrimination and this S
work seeks to address this gap.
While the major equal employment opportunity laws address discrimination based on
protected group status (e.g. race, gender, age, religion, national origin, and disability),
retaliation is not necessarily associated with or based on group membership but rather
results from action(s) taken by employers against employees who have a pending or even
settled complaint of employment discrimination. These actions may include but are not
limited to threats, coercion, intimidation, harassment, or interference as a result of one
exerting his or her rights under equal employment opportunity laws. Recent US Supreme
Court rulings have expanded the retaliation statutes to allow employees to file suit even
when an employment action does not diminish the employee’s pay, hours, or benefits or
cause the employee to suffer any kind of monetary loss (Burlington Northern and Santa
Fe Railway v. White, 2006). The broadening of the definition of retaliation is expected to
have the effect of escalating an already elevated number of claims, thus it is timely to
review this important provision of the law to better inform practitioners as well as
empower employees of ways to promote a fair and unbiased workplace for all workers.
Furthermore, retaliatory-related acts, like many workplace practices, may impact
employee perceptions of fairness and manifests into performance management concerns.
Performance management encompasses goal-oriented processes to maximize employee,
G
team, and organizational performance. Theoretically grounded in the equity (Adams,
1965) literature, perceptions of fairness and performance
management are linked to
A
firm viability (Bowen and Ostroff, 2004; Cicerone et al., 2005). Although performance
T appraisal, researchers now suggest
management traditionally and primarily encompassed
incorporating the element of employee perceptions (N
E den hartog et al., 2004) to enhance
performance. Thus, retaliation’s connection to performance merits further exploration, and
S
this review provides this consideration.
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What is retaliation?
Retaliation is defined as an adverse action taken by an employer against an employee
as a result of the employee’s act of seeking remedy from unlawful employment
D
practices initially established in the Title VII of the Civil Rights Act of 1964. Section
704(a) of Title VII is the anti-retaliation provision ofEthe statute and reads as follows:
It will be unlawful employment practice for an employer
A to discriminate against any of his
employees or applicants for employment [. . .] because he has opposed any practice made an
unlawful employment practice by this title, or because
N he has made a charge, testified,
assisted or participated in any manner in an investigation, proceeding or hearing under this
D
title (US EEOC Compliance Manual, 2009).
R to increase the effectiveness of
The US Congress intended for the retaliation provision
the Title VII statute by protecting employees from
Apotentially adverse consequences
that may have resulted from reporting employer violations. Most courts apply a threepronged test for retaliation cases. The employee bears the initial burden of establishing
a prima facie case of unlawful retaliation and must demonstrate that:
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(2) he/she suffered an adverse employment decision; and
(3) there was a causal link between the protected2activity and the adverse employment
decision.
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In some cases, the courts have added a fourth element,
requiring that the employer
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knew or reasonably should have known that the employee engaged in an activity
S
protected by equal employment opportunity laws (Hafford
v. Seidner, 1999).
(1) he/she engaged in a protected act;
The ‘‘reasonableness’’ of the employee’s action is at the core of whether an activity is
protected under Title VII’s anti-retaliation provision. First, the employee must have a
reasonable belief that the employer is violating the law when he/she files a complaint of
discrimination or harassment. Second, the employee must challenge the employer in a
reasonable manner – meaning that the employee’s challenge cannot be unlawful, interfere
with the employee’s execution of his/her job duties, or constitute insubordination.
Notably, it is unimportant whether the employee is accurate in his/her belief that the
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employer’s actions violate equal employment opportunity laws (Crew, 2007; Miles and
Fleming, 2008).
Under Title VII of the Civil Rights Act of 1964, a protected activity may result in
retaliation when it meets one of the two conditions including:
(1) participation in an investigation or a hearing about discrimination, which
encompasses filing a charge with a state fair employment practices agency, the
EEOC, or providing evidence during an investigation; and
(2) direct opposition to discrimination, which includes lodging protests within the
company, filing petitions, speaking to managers or public opposition to
discriminatory practices suchGas making statements to the media or civil rights
organizations (Olson, 2000). A
It also includes actions that range from
T interfering with job performance to threatening
violence (www.eeoc.gov/retaliation). A third condition associated with a protected
E based on provisions provided in employment
activity is the request for accommodation
law related to race, color, sex, religion, national origin, age, and disability. The request
S associated with the Americans with Disabilities
for accommodation is most commonly
Act and may include requests for ergonomically-designed
equipment such as a chair or
,
desk necessary to fulfill the essential duties of the job. It is also important to note that
the protection against retaliation applies not only to the complaining employee but also
those in close association with the
D employee such as witnesses to the alleged
discrimination. In addition, an employee bringing a retaliation claim does not have to
E
be in a protected class but can be associated
with the person filing a charge under a
protected activity. For example, a Caucasian employee may allege that he or she was
A
retaliated against for opposing discrimination against an African American coworker.
Retaliation claims do not require the
N employee bringing suit against the employer to
actually prove the alleged discrimination or harassment that forms the basis of the
D retaliation cases can be ruled on independent of
retaliation claim. Courts have held that
the facts underlying the initial discrimination
charge (see Burlington Northern and Santa
R
Fe Railway v. White). Further, the basis for ruling on retaliation can be substantially
A complaints. For instance, retaliation could be
different from general discrimination
demonstrated by a change in the employment relationship following a complaint of
discrimination while a discrimination complaint needs to show a pattern or practice that
violates equal employment opportunity
1 laws which can often be difficult for a single
plaintiff. Subsequently, the retaliation complaint would be evaluated based on the fact
that the employee was engaged in a1protected activity and suffered an adverse action,
irrespective of the outcome of the initial
2 discrimination claim. Thus, it is important for
employers to understand not only what constitutes discrimination but also how to handle
employee interactions in all aspects of3employment once a complaint has been filed.
T
The scope of retaliation claims
Although the scope of retaliation hasSbroadened, there were certain ambiguities in the
anti-retaliation statute that have impacted how courts are interpreting the law. A
particular area of controversy regarding the anti-retaliation provision has been the type
and level of harm sufficient to constitute retaliation. For instance, some courts restricted
retaliation claims to employment terminations and other significant employment
decisions such as the denial of a promotion or raise, denial of a leave, a pay cut, or some
other substantial change in position. Other courts have ruled that retaliation could be any
adverse employment action that has the effect of deterring employees from complaining
about discrimination or illegal harassment. The lack of a clear definition in the Title VII
statute has also caused confusion for the employers and employees who are left with
many unanswered questions including, ‘‘what happens if the employer changed the
employee’s shift or made alterations to the employee’s workspace or job duties after a
complaint?’’ Would this change constitute retaliation and under what conditions would
an employer be allowed to make such a change as business necessity for effective
operations? These questions are addressed later in this review as we seek to provide
clarity on how organizations can comply with employment laws, including the antiretaliation statute, in maintaining a fair and unbiased workplace.
Another issue that has contributed to confusionGabout the Title VII anti-retaliation
statute has been the mixed rulings in court cases that have resulted from divergent
rulings in cases with similar circumstances (Ryan, A
2007). The divergent court decisions
can be classified into three main groups:
T
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(2) …
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