Employers are increasingly being faced with retaliation claims based on employment decisions, whether hiring, firing, or discipline they make with respect to employees or applicants who have engaged in a "protected activity."
A protected activity can include filing a formal discrimination complaint with the Alaska Human Rights Commission (AHRC); filing a claim for workers' compensation insurance; making an informal complaint to a supervisor regarding alleged sexual harassment; or participating in an investigation of someone else's complaint of harassment or discrimination as a witness.
Often, these individuals cannot establish that they were actually unlawfully harassed or that their employers actually unlawfully discriminated against them in taking some employment action, but they can still establish a claim for retaliation.
On Jan. 9, 2004, the Alaska Supreme Court clarified what is necessary to establish a claim for retaliation in Raad v. Alaska State Commission for Human Rights. In 1993, Raad filed a complaint with the AHRC alleging a school district had discriminated against her based on her national origin (Lebanon) and her religion (Muslim) in not hiring her for a full-time teaching position. That complaint was dismissed after investigation because the AHRC did not find substantial evidence to support the complaint.
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Raad continued to apply, unsuccessfully, for full-time teaching positions in 1994, 1995, 1996 and 1997. In 1995, she filed another complaint with the AHRC again alleging discrimination based on her national origin and religion and adding a complaint for retaliation. A hearing was held on her complaint in late 1999. The Hearing Examiner ultimately concluded that Raad had not established discrimination or retaliation. The AHRC then dismissed her complaint.
Raad appealed the dismissal of her complaint to the Superior Court, which affirmed the AHRC's decision. On further appeal to the Alaska Supreme Court, the court reversed and remanded the claim for further proceedings. Specifically, the court held that it could not determine from the Hearing Examiner's decision whether the Hearing Examiner had considered some limited evidence in the record that might have supported a finding of pretext on the part of the school district in not hiring Raad for several positions.
In its decision, the court reaffirmed that Alaska follows the McDonnell-Douglas test for determining whether a claim of discrimination or retaliation has been proven. Under the McDonnell-Douglas test, the individual alleging retaliation must first establish a prima facie case of retaliation by showing (1) he or she engaged in a protected activity, such as filing a complaint alleging discrimination; (2) there was an adverse employment action such as the person was not hired; and (3) there was a causal connection between the protected activity and the adverse employment action.
To establish the causal connection, the individual often relies on the proximity in time between the protected activity and the adverse employment action. It is not difficult for an individual to establish the prima facie case of retaliation, so long as the employee can show the person making the decision actually knew about the protected activity. The court did accept that if the person making the employment decision did not know about the protected activity, the employment action could not have been in retaliation for the protected activity.
If a prima facie case is shown, then the employer must articulate a legitimate, non-retaliatory reason for the employment action. To do so, the employer must articulate a legitimate business reason for the decision. Those reasons had to exist at the time the decision was made and must be supported by some admissible evidence, whether in written or verbal form.
Then, the burden shifts back to the employee to show the employer's reason is really pretext for retaliation. An employee can show pretext either with direct evidence of retaliation or through indirect evidence. In the hiring context, indirect evidence might consist of a showing that there was a disparity in qualifications between the person complaining of retaliation and the person who was actually hired.
The court clarified that the "evidence of disparity in qualifications need not be sufficient to 'slap' a hearing examiner in the face to justify a finding of pretext." In other words, it could be a small or subtle disparity, not an obvious disparity.
Retaliation claims are expensive, time-consuming and difficult for employers to defend against. To avoid retaliation claims, employers should never consider any protected activity that an applicant, employee or former employee may have engaged in when making employment decisions.
Limiting knowledge of a complaint of harassment or discrimination to those with a need to know in connection with an investigation will assist in avoiding potential retaliation claims that might arise if there is widespread knowledge of a protected activity.
Ensuring that employment decisions, and the reasons for them, are well-documented in a personnel file will also assist employers in avoiding retaliation claims or in defending their decisions if necessary.
When in doubt, and where an applicant or employee has engaged in a protected activity, employers are well-advised to seek legal counsel before undertaking a possible adverse employment action with respect to that applicant or employee.
Kimberlee Colbo is a member of Hughes Thorsness Powell Huddleston & Bauman LLC in Anchorage. She can be reached via e-mail at KAC@htlaw.com.
