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An executive calls about an employee who had complained previously that her supervisor sexually harassed her. You conduct a prompt investigation. You find that the employee had an ax to grind because the supervisor had passed over the employee for promotion. Your investigation did not substantiate the employee’s allegations. You are pleased that your investigation placed the company in a strong position to defend any claim. Even if the employee sued, you were confident the company could win. But now a bigger problem arises. Once vindicated, the supervisor understandably is angry. The subordinate is a disloyal malcontent. The supervisor’s anger transforms into revenge. He refuses to give the subordinate any guidance. He doesn’t stop there. He orchestrates a campaign against the subordinate, rousing her co-workers into a frenzy. Physical threats are made to her. Co-workers call her “snitch.” Her work papers disappear. However, the subordinate still has the same job, pay and benefits. The subordinate has lodged a new complaint. What began as a meritless sexual harassment claim has mutated into a messy retaliatory harassment claim. Employers increasingly are faced with the startling result of winning the discrimination claim that gave rise to a suit but losing a retaliation claim. Plaintiffs’ attorneys like retaliation claims because they are easier to sell to a jury. Nearly 40 years after the civil rights era, it is more difficult to persuade a jury that an employer intentionally discriminated against an employee because of gender or race. But a jury is more likely to believe that an employer will retaliate against an employee. From childhood, we are scolded and told not to tattle. It is instinctive to dislike people who complain. Under the anti-discrimination laws, it is unlawful for an employer to retaliate against an employee who opposes an unlawful employment practice or files a charge, testifies, assists or participates in any manner in an investigation, proceeding or hearing. To prove retaliation, an employee must establish that he or she suffered an “adverse employment action.” The federal courts are all over the board on the meaning of “adverse employment action.” The most expansive interpretation, which was adopted by the 9th U.S. Circuit Court of Appeals in Ray v. Henderson(2000), is that an “adverse employment action” is “any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party from engaging in protected activity,” according to the opinion. The most restrictive and minority interpretation, which was adopted by the 5th U.S. Circuit Court of Appeals in Mattern v. Eastman Kodak Co.(1997), is that an “adverse employment action” only encompasses “ultimate employment decisions,” such as hiring, promoting, discharging and compensating. Because of this narrow interpretation, the 5th Circuit in Mattern, according to the dissent, rejected a hostile environment retaliation claim. Despite Mattern, Texas employers should take steps to prevent retaliatory harassment. First, even under Mattern, a plaintiff may be able to establish an adverse employment action based on retaliatory harassment if it results in a constructive discharge. For example, in a First Amendment case, the 5th Circuit in Colson v. Grohman(1999) recognized that retaliatory harassment is actionable if it results in a constructive discharge. In Mattern, the 5th Circuit declined to consider whether the alleged retaliatory harassment rose to the level of a constructive discharge because the jury found a lack of constructive discharge and that finding was not appealed. Second, Matternmay be overruled. Contrary to Mattern, seven federal circuits have recognized retaliatory harassment under federal anti-discrimination laws. Finally, two state courts have recognized claims of retaliatory harassment under Texas law. Recently, in Garcia v. Levi Strauss(2002), the 8th Court of Appeals in El Paso held that a hostile work environment can constitute “other discrimination” within the meaning of the workers’ compensation anti-retaliation law. In City of Dallas v. Rodriguez(1999), the 5th Court of Appeals in Dallas rejected the Matternstandard and held that harassment and humiliation of an employee may constitute retaliation under the Texas Commission on Human Rights Act. However, in direct conflict, in Elgaghil v. Tarrant County Junior College(2000), the 2nd Court of Appeals in Fort Worth applied the Matternstandard and rejected a claim of retaliation based on co-worker and supervisor harassment. THE PROPER RESPONSE Despite the uncertainty in the law, how should a company respond to the allegations of retaliatory harassment? • Investigate allegations of retaliatory harassment.The same sexual harassment elements and defenses will apply to retaliatory harassment. Therefore, the company should conduct promptly an investigation and take remedial action, if warranted, to stop it. The investigation should be conducted in the same manner as a sexual harassment investigation. • Revise anti-harassment policies to address retaliation.Pull out the employee handbook or personnel manual. It should contain a policy that prohibits harassment based on any of the protected categories, including harassment against an employee who has opposed discrimination or participated in a discrimination proceeding. Make sure the anti-harassment policy covers all types of retaliation laws that govern the company’s workplace. For example, under state law, subscribers to workers’ compensation cannot retaliate against persons who file workers’ compensation claims. Moreover, multiple state laws governing the health care field prohibit retaliation against persons who report patient abuse or neglect. • Train managers and employees about the anti-retaliation laws.Periodically provide anti-harassment training to all employees that addresses all anti-retaliation laws that govern the company’s workplace. • Watch out for shunning.Be vigilant and examine the workplace to make sure supervisors and co-workers are not ostracizing an employee who has engaged in protected activity. Nip in the bud negative comments about an employee’s complaint. The time is ripe for employers to address retaliatory harassment. Don’t let a company that calls on you for legal advice be the football team whose 98-yard touchdown run is called back because a careless mistake resulted in a penalty. Prevail on the discrimination claim, and train your team to avoid the penalty for retaliatory harassment. Robert C. Beal is the director of Kelly, Hart & Hallman, (www.khh.com), in Fort Worth, Texas.

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