WORKPLACE LAW -
Retaliation Claims Against Supervisors
Question:
I am a supervisor for a local business. Recently, one of our employees filed a sexual harassment claim against another supervisor in a different department. That claim was investigated and it was determined that no harassment had occurred. Several months have now passed, and it is time for me to do the complaining employee’s performance evaluation. The truth of the matter is that her performance has been very poor during the last couple of months. I am afraid to give her a negative evaluation though, for fear that she will claim retaliation. I feel like my hands are tied. What can I do?
Answer:
This is a very common scenario for individuals in supervisory or management roles who have an employee that has made some kind of workplace complaint—be it for harassment, discrimination, or safety violations. In these instances, supervisors are often reluctant to give negative evaluations or to discipline “complainers” because they fear a retaliation claim, even if the evaluation or discipline is deserved and is unrelated to the employee’s original complaint. This is especially true when the complaining party has previously filed a claim with the Department of Fair Employment and Housing for discrimination or harassment, since he/she is already familiar with the administrative complaint process and is that much more likely to simply file another such claim.
The courts have recognized the dilemma that supervisors face in these situations. In fact, the California Supreme Court recently issued a decision that specifically focused on whether an individual may be held liable for retaliation under the Fair Employment and Housing Act (FEHA). In that case (Jones v. The Lodge at Torrey Pines, 2008 Cal. LEXIS 2504), the Court found that an employer can be held liable for unlawful retaliation, but that an individual cannot. The Court’s rationale focused on the fact that supervisors are required by the very nature of their jobs to engage in the type of lawful conduct—such as giving performance evaluations or imposing discipline—that could later give rise to a retaliation claim. The Court ruled that if every supervisor had to incur the risks of a lawsuit every time he/she made a personnel management decision, the management of industrial enterprises would be seriously affected. The Court also noted that it would be unfair to place supervisors in a position of choosing between their own personal interests, and their loyalty to their employer.
The Court discussed the fact that many management decisions are made collectively by a number of individuals, but that it is then left to one of those individuals to communicate the personnel decision to the subordinate employee in question. The Jones Court felt that imposing individual liability for what was actually a collective decision would likely foster adversarial relationships within a company’s management. Lastly, the Court expressed its concern that individual supervisors who were targeted by lawsuits would be more inclined to settle those claims so as to avoid any further liability, rather than allowing the case to be decided on the merits (or lack thereof). This likelihood of settlement would encourage employees to always name their supervisors in a retaliation lawsuit, when in fact the legitimate target of such a lawsuit is generally the employer itself.
Notwithstanding the protections afforded supervisors by the law, you also need to consider the effect that your actions would have on the morale of your other employees. Overlooking substandard performance or unacceptable behavior by a “complainer” sends a negative message to your other employees, and suggests that making a complaint against the company is a way to gain immunity from potentially negative personnel actions. Similarly, you do not want to encourage the complainer or to reward that individual for his/her conduct, particularly if his/her complaint was unjustified to begin with.
Your best course of action is therefore to treat an employee who has made a prior complaint fairly, and to ensure that your treatment of that employee is consistent with your company’s past practices in similar situations. It is also essential that you document the reasons for the employee’s negative performance evaluation or discipline, so you have a record that will support your actions in the event that a retaliation claim is filed against your employer.
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