By John M. (Jack) Collins, General Counsel, Massachusetts Chiefs of Police Association, Shrewsbury, Massachusetts
s the third most frequent type of discrimination claim filed with the U.S. Equal Employment Opportunity Commission (EEOC), retaliation complaints now constitute about one-third of all EEOC cases. Retaliation claims are often easier to prove and result in larger damage awards than do other discrimination cases. Recent U.S. Federal Bureau of Investigation FBI) cases make it clear that law enforcement agencies are not immune from retaliation and whistleblower claims. Time listed FBI agent Coleen Rowley as one of its “Persons of the Year” in 2002 for her whistle-blowing efforts in connection with the alleged mishandling of the case of terrorist Zacharias Moussaoui.1 Earlier this year, a sum of more than half a million dollars was awarded to a former Minneapolis FBI agent, primarily for emotional distress and damage to her reputation. After filing an internal discrimination claim alleging that female agents were not given equal credit for cases, she received negative performance evaluations, an involuntary transfer, and threats of termination. Eventually she resigned “under duress.” (She also reported the theft of a Tiffany globe from the World Trade Center by FBI agents.)
Among the federal discrimination laws that include retaliation prohibitions are the following:
- Title VII of the 1964 Civil Rights Act
- Age Discrimination in Employment Act (ADEA)
- Americans with Disabilities Act (ADA)
- Fair Labor Standards Act (FLSA)
- Equal Pay Act (EPA)
- Occupational Safety and Health Act (OSHA)
In addition, many states have antidiscrimination and whistle-blower laws as well as workers’ compensation statutes, many of which specifically prohibit retaliation.
While able to recover attorney’s fees, successful plaintiffs in FLSA or EPA retaliation cases are limited to compensatory and liquidated (double back-pay) damages. Most other antidiscrimination statutes allow for both compensatory and punitive damages.
Damage awards in retaliation cases can be very large. In some cases—especially where federal laws cap compensatory, liquidated, or punitive damages—individuals may file retaliation claims in state courts. According to a seven-year study of retaliation suits, threequarters of whistle-blower claims and more than two-thirds of discrimination retaliation claims were successful, with the victorious plaintiffs receiving a median compensatory damage award of $139,000.2
Supreme Court Cases
The 2006 U.S. Supreme Court case of Burlington Northern & Santa Fe Ry. Co. v. White interpreted the antiretaliation provisions of Title VII more broadly than its antidiscrimination sections.3 This expanded coverage applies to all conduct of an employer, regardless of whether it is related to work, thus covering retaliation outside the workplace.
As the unanimous decision explained, “materially adverse” retaliation includes all conduct that might dissuade a reasonable worker from either making or supporting a charge of discrimination. It does not, however, require employees to act civilly to one another, nor does it cover petty slights, minor annoyances, or poor manners. Personality conflicts or snubs from supervisors or coworkers are also not prohibited.
This was a logical extension of the Supreme Court’s ruling in the 1997 case of Robinson v. Shell Oil Co., which held that Title VII prohibits retaliation against both current and former employees for participating in any Title VII proceeding.4 That case involved a negative employment reference given for a former employee.
It is often more difficult to prevent retaliation than discrimination. Making supervisors and officers aware of potential claims is a good first step. In addition, chiefs should be sure that their departments take several steps to help respond to, if not prevent, retaliation claims.
Police agencies need effective antidiscrimination and harassment policies. Each employee should receive a copy of such policies both upon hiring and annually thereafter, preferably accompanied by training. Chiefs should attend such trainings to help convey their personal commitment to enforcing the requirements and disciplinary components of such policies.
Policies should explain that retaliation will not be tolerated. The seriousness of retaliation should be emphasized repeatedly. All officers must understand that retaliation will generally result in termination.
A grievance or reporting procedure should be included. This procedure should provide a mechanism for bypassing any individual in the chain of command who might be the cause of the problem.
The policy should make it clear that all complaints will be thoroughly and promptly investigated. While some level of confidentiality should be maintained, no guarantees should be made. The policy should indicate that the alleged offender has rights and will be notified and given an opportunity to respond.
An essential component is an assurance that the employer will not retaliate for either filing or supporting a discrimination claim.
One way of reducing (and in some cases avoiding) liability is for employers to conduct prompt and thorough investigations of all retaliation claims.
It is better not to use such terms as retaliation, discrimination, or harassment in the conclusion section of investigative reports prepared by or at the direction of the chief. These are legal terms and could improperly bolster a plaintiff’s case. It is more appropriate to refer to an officer’s conduct as unacceptable, offensive, inappropriate, or a violation of rules or policy.
As soon as the chief becomes aware of a discrimination complaint, prompt steps must be taken to monitor all parties to ensure that no retaliation takes place. Separating officers is often helpful. However, smaller departments may find this more difficult. In all cases, chiefs should inform supervisors to be watchful for any signs of retaliation. A general admonition to all officers at roll call, for example, might help convey the message of how seriously the department takes the issue of retaliation.
Chiefs should assign experienced investigators, preferably those trained in handling discrimination claims. In addition to determining whether any discrimination or retaliation took place, a thoroughly documented investigation will help prevent an officer from embellishing if the case moves to the litigation stage.
In most cases, employees engaged in intentional retaliation against a coworker who has filed or supported a claim of discrimination should be terminated. This fact should be included in the department’s policies and emphasized in all discrimination or harassment trainings. Chiefs and supervisors should be sure that every employee knows how seriously the department takes retaliation cases.
Because of the likely severity of the discipline for violation of the department’s antiretaliation rules, accused officers are entitled to a thorough and prompt investigation of any such allegations. Separating coworkers during the investigation is often advisable. Where this is not feasible, stern cautionary remarks are certainly in order. Chiefs should also consider placing accused officers on paid administrative leave (not suspension) pending the outcome of the investigation, especially where the allegations are extremely serious and/or appear initially to be founded.
One last word of caution: chiefs should consult labor counsel before disciplining an employee who has recently filed a discrimination or retaliation claim. Unless the discipline is upheld, it is likely to be seen as retaliatory and could result in an even greater damage award. ■
1Richard Lacayo and Amanda Ripley, “Persons of the Year 2002: Cynthia Cooper, Coleen Rowley and Sherron Watkins,” Time, December 2002, http://www.time.com/time/subscriber/personoftheyear/2002/poyintro.html# (accessed November 8, 2007).
2Employment Practice Liability: Jury Award Trends and Statistics, Jury Verdict Research, 2601.EPL03 (LRP Publications: 2003).
3Burlington Northern & Santa Fe Railway Company v. White, 126 S.Ct. 2405 (2006).
4Robinson v. Shell Oil Co., 519 U.S. 337 (1997).