Retaliation and Opposition—A Major Headache for Employers

Big Pharma, when will you learn?

Not anytime soon, it seems.

This week, former vice president Irene Laurora sued Bayer in the U.S. District Court in New Jersey alleging, among other claims, discrimination and retaliation after she protested the company’s mistreatment of a pregnant colleague.

In the lawsuit, Ms. Laurora, former “Working Mother of the Year”at Bayer, claims that other executives removed a pregnant colleague from a project because that employee wanted to take the maternity leave owed to her. After Ms. Laurora complained, according to the suit, Bayer denied Ms. Laurora a promotion, demoted her, and then (surprise!) fired her.

Now, Bayer didn’t just come right out and fire her. Of course not!

Ms. Laurora says her supervisor issued “baseless performance critiques,” and Bayer couched her termination as a position phase-out due to a corporate reorganization that did not exist.

Employers, this is the type of conduct that will earn you a Charge of Discrimination from the Equal Employment Opportunity Commission and a possible lawsuit. Don’t do it!

Retaliation And Opposing Discriminatory Treatment

Once an employee complains to the Human Resources Department or a supervisor about sex discrimination, if the employer then demotes or terminates the employee, the employer can be held liable for retaliating against the employee for complaining about discrimination.

Why?

Telling management about unlawful workplace discrimination is “protected activity” under Title VII of the Civil Rights Act of 1964 (“Title VII”).  Title VII contains an anti-retaliation provision making it unlawful for an employer to subject an employee to an “adverse action” (demotion, termination, etc.) when that employee has opposed any practice made an unlawful employment practice by Title VII.

The EEOC considers “opposition” to be complaining to anyone about alleged discrimination to oneself OR others.

As I wrote about here, reducing an employee’s compensation or job duties while offering her what is tantamount to a demotion is classic retaliation, also prohibited by Title VII.

The EEOC is Cracking Down on Retaliation

As my esteemed partner, Rich Cohen, told you, the EEOC recently released the comprehensive “final Enforcement Guidance on Retaliation and Related Issues. The EEOC Chair Jenny R. Yang stated that “Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination.”

Those are some high statistics!

Employer Takeaway:  That half of all Charges of Discrimination involve retaliation is pretty astonishing, and it seems that companies may need a better understanding of the anti-retaliation provisions of anti-discrimination statutes like Title VII. While we do not know how the Laurora-Bayer lawsuit will unfold, we can remind you that it’s far easier to prove retaliation than the underlying discrimination — and far easier to create a retaliation situation if you don’t know how to deal with a charge or claim or complaint of discrimination.