Juries are More Likely to Find Retaliation than Discrimination

Those of us who have tried our share of employment discrimination cases know that this fact pattern is not as uncommon as one might think. A few years ago, an East Texas jury reached a similar split outcome in a case that I was trying — although, fortunately, they did not award any compensatory or punitive damages in that case. Many of my friends who represent plaintiffs have shared similar experiences of split verdicts, where the plaintiffs only prevailed on their retaliation claims. In fact, in the last 20 years, the number of Equal Employment Opportunity Commission (EEOC) charges alleging retaliation has increased by approximately 34 percent, while the number of charges alleging race discrimination has dropped by approximately 39 percent, suggesting that plaintiff’s lawyers see the value of asserting retaliation claims.

While I have some theories as to why juries are more likely to accept retaliation claims over discrimination claims, the more important question is: “What can employers do to protect themselves against retaliation claims?” For starters, every company should make sure that employees are provided with multiple options for reporting discrimination, safety problems, fraud, or misconduct, and that they are provided assurances that they will not be retaliated against for any reports or complaints that are made in good faith. When complaints are made, respond to them promptly. Even if you conclude that a complaint does not have merit, recognize that the employee may have genuinely perceived discrimination or other wrongdoing and be respectful of those feelings.

As in the aforementioned Houston case, it is not unusual for employees to make a complaint about their supervisor after they have received negative feedback about their performance. Coaching supervisors and managers on how to provide feedback about performance issues can often make a big difference on how it is perceived by the employee. If an employee does complain about a supervisor, decisions made by that supervisor regarding that employee (raises, promotions, or terminations) should be reviewed by human resources and the supervisor’s supervisor. While employees who raise concerns should not be immune from discipline or even termination, a company will need to be comfortable that there is not a causal connection between an employee’s protected activity in raising concerns and any ultimate, adverse employment action. Employers will want to consider whether the employee is being treated in the same way that other employees with similar performance issues have been treated, and if there are persons other than the person who was the subject of the complaint who are reviewing the performance decisions at issue.