I Can’t Promise: Proactive Approaches to Employment Liability

Anyone who has spent much time talking with an employment attorney has heard the attorney couch his or her advice with something like, “while I can’t promise the employee won’t file a charge (or a lawsuit),” and then proceed with his or her advice on the matter. (In fact, I told a client that very thing today). And, that’s true. While employment attorneys and HR professionals may have a sense of which circumstances are more likely to lead to a charge or lawsuit, the ultimate motivations of an individual are situation-specific and not amenable to easy prediction.

That said, even in a world that is not predictable, there are statistics you can keep in mind to help you better evaluate your organization’s liability in dealing with challenging employee-related situations:

  1. More than half of all charges filed with the EEOC include a retaliation claim – and those claims are more likely to be successful at trial.
    56% of all charges filed with the EEOC in FY21 included a complaint of retaliation. Retaliation claims arise from a perception of negative action by the employer in response to any protected activity – for example, a complaint of discrimination or harassment, a request for protected leave or an accommodation, or participation in another employee’s complaint.  Moreover, retaliation claims can be easier to bring than standard discrimination claims. While discrimination claims must be based on an adverse employment action (such as demotion, pay or benefits change, or termination), retaliation claims can be predicated on any action that could reasonably dissuade an employee from engaging in protected activity, including not only actual adverse actions but also other, less serious (but negative) actions and even the threat of adverse action. That universe is much wider, meaning that it’s both easier for employees to perceive retaliation and to state a claim of retaliation.

    Retaliation claims are also more successful at trial. There are two key reasons. First, retaliation is more common. It is not unusual for a supervisor to feel unfairly accused of discrimination, to be angered by the accusation, and to act upon that anger.  Furthermore, the average juror can relate to both that anger (or alleged anger) and to a feeling of being retaliated against. Everyone has retaliated and experienced retaliation at some moment in life in some context.  That commonality makes it easier for jury’s to believe that retaliation has occurred as claimed by a plaintiff.

    Given the prevalence of such claims, how can employers manage this liability? Proactive communication and effective investigation. Every instance of protected activity ought to be accompanied by a reminder to decision-makers not to take any action that could be perceived as negative, absent good cause (such as appropriate corrective action) and perhaps a consultation with Human Resources. Moreover, complaints of retaliation should be taken as seriously discrimination or harassment complaints, fully investigated and acted upon.

  2. Disability claims now account for a higher percentage of charges than race or sex.
    Beginning in 2019, charges of disability discrimination began to outpace charges of race and sex discrimination. Charges of disability discrimination saw a jump in numbers following the ADA Amendments Act of 2008 – which substantially expanded the Act’s coverage – and have continued to grow, as a percentage of total charges, ever since.

    Given these increasing claims, how can employers anticipate these issues and reduce disability-related liabilities? Through an effective program of accommodations. Employees should be encouraged to communicate regarding needed accommodations and should be met with a positive and thoughtful response. While some requested accommodations are not reasonable or constitute an undue burden, effective dialogue with an employee and creative thinking will usually identify accommodations that can meet many, if not all, of the employee’s needs. All it takes is an open mind and a willing attitude to substantially reduce the risk of disability-related claims.

  3.  90% of women report experiencing or witnessing sexual harassment in the workplace.
    In the wake of the #metoo movement, many employers have paid greater attention to issues of sexual harassment in the workplace, expanding training programs, rewriting policies, and taking more serious action in response to credible harassment complaints. And, rates of reported sexual harassment continue to remain at the same level.  In fact, 90% of women report experiencing or witnessing sexual harassment in the workplace.  These numbers should serve as a stark reminder that the work to eradicate sexual harassment in the workplace is far from over.

    Proactive employers looking to manage liability related to sexual harassment in the workplace should continue these expanded efforts through regular training, effective complaint and investigative procedures, and tough enforcement measures.

  4. Small businesses are at particular risk.
    While more than 40% of employment-related lawsuits are filed against small businesses, small business are substantially less likely to be insured against this risk.  (One study has reported that only 2% of small businesses carry such insurance.)  One key to managing the business risk of employment claims is through Employment Practices Liability Insurance or “EPLI.” While many business owners assume that they are covered for these claims through their typical liability insurance, that is rarely true. Given the cost of defense in such lawsuits, the risk is worth at least a conversation with an insurance agent or broker regarding your EPLI coverage options. And, it’s a good idea to talk to your usual employment law counsel as part of that process to ensure your preferred law firm is already affiliated with the EPLI provider as a member of the insurance company’s “panel counsel” so that you get to use the lawyer(s) of your choosing and not someone new to the company chosen from a list of strangers on a list given to you.

While it is impossible to manage employment-related liability to zero, understanding high risk issues and taking proactive steps in these areas can help your organization to reduce liability (and, as a byproduct, lead to a more content and engaged workforce).

For more information on proactive approaches to employment liability, please contact Michael Bowling or another member of the Labor & Employment Practice Group.

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Associated People:

Michael W. Bowling

Practice Area:

Labor & Employment