In CBOCS West, Inc. v. Humphries, the high court ruled that an employee could bring a claim of retaliation under the Civil Rights Act of 1866 even though the statute doesn’t mention retaliation. In a 7 to 2 vote, the Supreme Court held that the Civil Rights Act of 1866 encompasses claims of retaliation that follow complaints of discrimination based on race.
Here are some pointers to help prevent retaliation claims:
- Remember that an employee can turn a marginal underlying claim into a great retaliation claim based on numerous Supreme Court rulings.
- Any time anyone has a claim filed against them, it feels “unfair.” It’s important to deal not only with the employee, but with the accused in this process. Make sure that the accused manages their emotions properly so that they don’t, in fact, retaliate against the complainant.
- Give the complainant a way to file follow up complaints that feels “safe” to them, for example to assigning an ombudsperson for follow up. Make sure to investigate any underlying claim thoroughly. However, do not promise the claimant confidentiality in the process.
- Finally, make sure to notify your insurance carrier about the underlying claim. If you have an Employment Practices Liability policy, it might have a “trigger” provision that requires this notice. The failure to give notice may limit your coverage.
We encourage HR That Works users to review the Training Modules on sexual harassment and discrimination.
