News + Events
Managing Workplace Crusaders
February 9, 2009
Caroline Knox Anderson
One of your employees is on a mission. A part-time college student, he is frustrated and upset because he believes that your company is not working with him to accommodate his class schedule. His frustration has become particularly disruptive – his complaints are becoming increasingly frequent and he has encouraged other employees to voice their opposition to this and many other "unfair" company practices. What do you do about this workplace crusader?
Although the actions of workplace crusaders can prove extremely disruptive, it is important that employers understand the potential ramifications of employment actions taken as a result of such conduct. In particular, employers need to recognize when potentially disruptive crusading by an employee might constitute protected activity under one or more statutes prohibiting retaliation in the workplace. Examples of such statutes include, but are not limited to: Title VII of the Civil Rights Act of 1964 (Title VII); the Family and Medical Leave Act (FMLA); the Americans with Disabilities Act (ADA); the Fair Labor Standards Act (FLSA); the Occupational Safety and Health Act (OSHA) and the Sarbanes-Oxley Act of 2002. This article provides tips for managing workplace crusaders without running afoul of these and other laws prohibiting retaliation.
Before taking action, gain an understanding of the full nature of the crusader’s complaint or concern to determine whether it constitutes protected activity.
Although an employer may not take action against an employee who engages in conduct protected by law, not all complaints or concerns constitute protected activity. For instance, if the college student referenced above complained that his employer treated him differently "because he is a student," that complaint would not constitute protected activity because the employee’s status as "a student" is not protected by law. Thus, a complaint about being treated differently because he is a student would not give rise to an actionable retaliation claim if the employer took action against the employee in response. Conversely, if, in voicing concerns with the employer, the college student attributes his treatment to some protected characteristic such as sex, race, or disability, that concern likely would constitute protected activity so long as the employee reasonably believed his allegations were true. These contrasting scenarios illustrate the importance of determining whether an employee’s actions constitute protected activity before taking action against the employee as a result of those actions.
Although the intricacies of all anti-retaliation statutes exceed the scope of this article, two general observations about the nature of protected activity are critical. First, an employee can voice a concern about the treatment of other employees and still be protected, even if the practice in question has no impact whatsoever on the complaining employee. For example, a crusader may observe a co-worker being sexually harassed by a supervisor and make a complaint on her behalf – this would be protected activity. Second, the fact that the practice complained of may not constitute an actual violation of the statute does not mean that the complaint cannot give rise to an actionable retaliation claim. So long as the employee reasonably believes that the conduct complained of violates the law, action taken against the employee for raising the concern can give rise to an actionable retaliation claim. With these basic guidelines in hand, an employer generally should be able to identify situations in which an employee’s concerns, complaints or actions may constitute protected activity.
That said, what should employers do in situations where an employee engages in protected activity, but has done so in a particularly disruptive or inappropriate way? In those circumstances, the employer must use utmost caution to ensure that the employee is not deterred from engaging in protected activity, while at the same time, encouraging the employee to voice concerns in a way that limits disruption. The following suggestions can help strike this delicate balance.
Implement and clearly communicate policies and procedures that encourage employees to report possible wrongdoing in an appropriate manner.
One of the best ways to minimize the disruption caused by workplace crusaders is to implement and clearly communicate complaint reporting procedures. This approach not only provides employers a better opportunity to address and correct valid employee concerns, it establishes expectations about the way in which concerns should be raised. Instead of disciplining the workplace crusader for complaining in a disruptive manner or attempting to prevent the employee from making such complaints, educate the employee about the appropriate channels for reporting concerns and firmly encourage the employee to use them. Be sure that the employee sees this as an effort to direct him to the appropriate channels for expressing concerns, rather than an effort to discourage the employee from reporting wrongdoing.
It is not enough, however, to have a process for reporting concerns or complaints. The process must work. This means that employers must take employee concerns seriously, make a prompt and appropriate inquiry into the concerns, and communicate the outcome of the inquiry (but not necessarily all of the facts learned) to the complaining employee. Demonstrating the effectiveness of the company’s complaint reporting procedure will help ensure that employees (including would-be crusaders) use the complaint reporting procedure rather than broadcasting complaints to fellow employees or through other less productive channels. This is true even for complaints that do not rise to the level of protected activity. For example, although the employer cannot be subject to liability for retaliation against the college student who complains of unequal treatment because of his status as a student, the student may have a good faith complaint about discrimination on the basis of a protected characteristic (such as his race) in the future. If his first complaint is effectively addressed, he would be more likely to use the proper reporting procedures – and have confidence in the ultimate result of the company investigation – when raising concerns later.
In addition to following the law in practice, employers should always communicate to employees that adhering to the law is the formal policy of the employer. The company’s employee handbook is one effective way to clearly communicate the ways in which an employee can alert management to possible discrimination. The handbook should clearly state that the employer will neither retaliate against good faith complaints of discrimination nor deter such complaints. Another effective method is to explain complaint reporting procedures and the company’s anti-retaliation policy in new employee orientation or training. If the employer has a hotline, the employer should also post and distribute hotline numbers to employees and explain that calls can be made in anonymity and will be promptly addressed.
Avoid taking any action that would dissuade any reasonable employee from making future complaints.
Virtually any action an employer takes in response to an employee’s protected activity could give rise to an allegation of retaliation, particularly now that the U.S. Supreme Court has significantly expanded the kinds of employment actions that can constitute retaliation. In Burlington Northern & Santa Fe Railway Co. v. White, the Supreme Court held that a company is liable for retaliation when "a plaintiff … show[s] that a reasonable employee would have found the challenged action materially adverse, which … means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." In most jurisdictions, this standard represented a considerable decrease in the burden employees faced when attempting to demonstrate that they had suffered unlawful discrimination in connection with a retaliation lawsuit. The practical implication of this decision is that the workplace crusader may have a viable retaliation claim even if the employer takes action short of termination, demotion, or an undesirable transfer (which are the kinds of actions that have traditionally given rise to retaliation claims). Under the less onerous standard established by the Supreme Court, more subtle actions such as a minor change in job duties, failing to discipline the alleged wrongdoer, or discipline short of termination (such as counseling or warnings) can give rise to viable retaliation claims. As a result, employers must be extremely cautious when taking any action that might be viewed as adverse by an employee who has recently engaged in any form of protected activity.
If you must discipline a workplace crusader for reasons other than his protected activities, thoroughly document those legitimate reasons.
While employers must be careful when taking an adverse employment action against an employee who has recently engaged in protected activity, the law permits such actions so long as they are not motivated by the employee’s protected activity. In other words, employers may take action against an employee who has engaged in protected activity for legitimate non-retaliatory reasons unrelated to the protected activity. For example, if a workplace crusader has legitimate performance or conduct issues, the company can discipline him for those issues without violating any anti-retaliation statutes. That said, the timing of discipline (or other adverse action) vis-à-vis an employee’s protected activity can give rise to an inference of retaliation. Thus, it is especially critical that any such disciplinary action be well founded, well documented, and consistent with the employer’s treatment of other employees who have engaged in similar conduct. By thoroughly documenting the conduct that gives rise to the disciplinary action and meting out discipline consistently, an employer generally can overcome any inference of retaliation created by timing alone.
In sum, workplace crusaders present a sometimes difficult conundrum for employers because the actions of workplace crusaders are often simultaneously disruptive and protected by law. For that reason, employers must use extreme caution when managing situations involving workplace crusaders and are strongly encouraged to consult outside counsel before making such employment decisions to ensure compliance with applicable laws and to minimize the risk of future litigation.