Timing of Conversation Influences Settlement in Age Discrimination Claim

A man in an age-protected class at an academic medical center left his job after working closely with his supervisor and mentor for many years. He was later re-hired, but upon returning, he alleged he was paid less than his younger, less experienced colleagues and filed a complaint with HR. In response, he was granted a new title and a salary increase. He claims that at least two other employees also received raises at the same time.

The claimant continued to speak with colleagues about their compensation and came to believe that there was a systemic pattern of age discrimination within the team. He alleged that, since inquiring about his colleagues’ salaries, he experienced retaliatory behavior from his supervisor. He claimed this included a critical performance review, being placed on a fixed work schedule, and facing threats of termination.

He filed a Charge of Discrimination with the Massachusetts Commission Against Discrimination (also known as MCAD). In its defense, the medical center maintained that there was no evidence of age discrimination in the payment system, and that the claimant had been given consistent support and professional opportunities throughout his tenure.

The claimant removed his charge from the state commission, and filed a civil action in the Massachusetts Superior Court with the same allegations. His court complaint added a claim for retaliation in violation of the Massachusetts Paid Family Medical Leave Act. It also added direct claims against the supervisor for aiding and abetting discrimination and intentional interference with contractual relations.

The case was settled during private mediation before significant discovery was completed. There was a concern that interactions between the claimant and his supervisor, especially after the initial commission charge was filed, could support a claim for retaliatory conduct. And that this would preclude dismissal via summary judgment, resulting in a lengthy and contentious trial.

To help us discuss the legal risk management aspects of this case, we are joined now by Courtney Cruz, an attorney and Claims Manager for Employment Practices Liability at CRICO, which manages the defense of claims in the Harvard medical system.

Tom: Courtney, thank you for joining us.

Courtney: Thank you for having me, I’m happy to be here.

Tom: Some of these elements might look familiar to anybody in any workplace, talking about each other’s pay, supervisor-employee communication about performance, and changing professional relationships. When can these common workplace interactions create challenges down the road in litigation? It seems like this stuff’s always in play with managers and employees.

Courtney: It’s very true, these are all very normal things that happen all the time at work. So things like employees talking about their employment conditions, or talking about how much they make, or their pay, those are normal things that people talk about at work. An employer can’t ask people not to have those conversations. 

But an employer can tell an employee that it’s not okay to make people feel uncomfortable. So we’ve seen a lot of cases where it’s not just the fact that the conversation’s happening, but it’s that one employee is sort of on this mission to get that information, and they’re becoming disruptive in the workplace, or they’re sort of demanding that people disclose their pay. And obviously, one employee does not have the right to make another employee disclose something or talk about something that they feel uncomfortable talking about. So while that’s a normal thing, it can create problems in the workplace, obviously. And there are laws that say an employer can’t prohibit employees from talking about those things, but I think it’s a very different thing to talk about something and then to make somebody else feel uncomfortable.

Like you suggested, another very, very common thing at work that happens all the time is communications about performance. So, most people have at least an annual performance review, so everybody’s familiar with that, and everyone knows that that’s a normal thing that happens. In fact, it’d probably be weird for an employee to never have a performance review. People get feedback all the time, or they should be getting feedback all the time from managers.

But once an employee makes a complaint, for example, of discrimination, all of those things that were normal and routine all of a sudden may feel different to that employee. They start to see things in a different light, they become more sensitive, and it can be tricky, especially if there hasn’t been a good foundation of documentation of a specific problem, or not even a problem, but just an area that an employee might want to work on. It’s important to be consistent and always give that feedback, because obviously it’s harder to defend these cases when those conversations have never happened. And then an employee complains about something, like discrimination, and then they have a performance review, and all of a sudden, they’re being told, well, this has always been an issue. So, it’s important that those conversations are happening, even though it can be something that managers may feel uncomfortable with. It’s better to raise those things and try to correct them and put people on notice. Instead of something feeling like it’s coming, sort of, out of the blue to someone.

Tom: And part of the story seems to be the relationship between the supervisor/mentor, and the employee. They had a positive relationship before he left and came back and started asking others about pay.

Courtney: Yeah, it’s tricky in retaliation cases, I think, especially where an employee had a really close or a really great relationship with their boss or their supervisor, and then once there’s some sort of performance issue, or some conflict or a complaint of discrimination, obviously like I mentioned employees become more sensitive. I think especially where you were very close with someone, an employee becomes sort of hyper-aware of these little things, and we often see cases where it’s not something super concrete, but it’s like, oh, they weren’t as warm to me, or they weren’t as friendly, or I felt like they were micromanaging me.

So, again, I think the important thing is for any performance, even I don’t even want to say issues, but every discussion or feedback, if there can be documentation, it’s always so helpful in these cases to be able to show these little issues always existed. Or I’ve been talking to them about these issues. It can make it pretty easy for an employee to say, oh, you just made this up, if we can’t support it with documentation. So, having those tricky conversations is important, and documenting things so you can say, you know what, this didn’t just come out of nowhere, we’ve talked about this before.

And as far as relationships go, in a discrimination case, unlike retaliation, it can be helpful. So we see a lot of cases where somebody’s saying, oh, my boss discriminated against me because I’m a woman, and then that same person was the person who hired you. So it’s helpful to us to be able to say, well, this person couldn’t have been discriminated against you because they hired you, and obviously they knew you were a woman when they hired you. So those things can help defend discrimination cases, but it can make retaliation cases a little more sensitive.

Tom: How do organizations navigate the tension between performance management and the risk of employees perceiving retaliation? Are there other risks that people may not even be as aware of?

Courtney: So, with any retaliation case, the biggest problem that you face in defending those is just timing, because even if a case is ultimately defensible, and whatever protective activity had nothing to do with the adverse action or any decisions that were made about someone’s employment, if somebody complains, for example, files an MCAD complaint, or complains to HR, anything that follows after that is going to sort of set up a claim for retaliation. And that’s just sort of the fact, and you can’t really do anything about that other than have supported documentation that these things were sort of happening and brewing and coming along before the protected activity.

But that is by far the hardest part about any retaliation case. Timing is, in fact, so tricky that there’s even statutes in Massachusetts that there is a presumption of retaliation.

Tom: Wow. 

Courtney: So there’s the Massachusetts Paid Family Medical Leave Act, and it says in that statute, if an employee is out on leave and returns, and within six months of them returning, there’s any sort of adverse action, there’s a presumption that it was retaliation.

Which is kind of shocking to hear. That doesn’t mean you lose your case, that doesn’t mean an employee’s somehow immune for six months and can do whatever they want. It just means that the burden goes from the employee, it goes to the employer to show that  whatever adverse action was completely unrelated to that person’s leave. And you can do that. It just means you probably won’t get rid of the case early on summary judgment.

You just have to be very careful, and in all of the cases that we’ve seen, we’ve learned some tips and things that can help.

For example: Have someone else take a look at it, have someone else get involved to make sure that whatever adverse action, if it’s a warning, if it’s a written warning, if it’s suspension, that that’s appropriate. So, involve your HR, involve your Office of General Counsel, just having another set of eyes, someone who doesn’t really have any sort of skin in the game, for example, look at it and say, ’yes, this is appropriate; it’s well documented; this is the appropriate next step.’ That can be helpful.

Also, make sure you’re following your own policies and procedures, especially as far as steps. So a lot of the times there’s policies about progressive discipline, where you start with a verbal warning, and then there’s a written warning. And if you don’t follow those steps, and you skip right to termination, it can be harder to defend because you may have missed some steps. So just make sure you’re following your policies and your procedures as closely as possible, and you did the right thing each step of the way is very helpful.

Another thing is, I’ve seen cases where, on purpose, you have someone other than the supervisor who’s been the target of the complaint. Have somebody else be the one to take the adverse employment action, or to meet with the person and give them the warning, or discuss their performance with them. If you can involve a supervisor’s supervisor, or even someone in HR, then it’s harder for someone to say, you’re retaliating against me because that person had sort of no accusations made against them. So if you can bring someone else in, that can help.

If an employee complains about discrimination or claims they’re being retaliated against, make sure that you conduct an investigation, bring in HR, bring in Office of General Counsel, but if it turns into a lawsuit or a claim down the road, you want to be able to show that you took the complaint seriously, and you did an investigation, and documented those steps.

If you can delay any sort of disciplinary action, if at all possible, that can be a good thing. Again, the person’s not immune, so we’re not saying don’t address it, but if someone returns from leave, and the very day they come back, you meet with them and give them a warning, that can look like retaliation, even if it’s not, but an employee will definitely perceive it to be. So take some time if you can. You know, sometimes you obviously have to address something, but if it’s something that you don’t have to address immediately, maybe give it some time. Use that time to consult your general counsel. Have an independent review, have someone else take a look at it, and again, there’s no urgency. If you don’t need to do it, take a little time.

And then the last sort of thing that we see that can help in these cases is sort of the opposite. We’ve been talking a lot about discipline and adverse actions at work, but again, you want to be consistent if there’s something positive.

So if an employee made a complaint of discrimination, filed at the MCAD, complained to HR, if they were due for a raise and they had positive performance, they should still get that. Don’t delay giving them that. Stay, you know, follow the process, and if they were due for anything positive, they should still get that, because again, delaying or not giving something to an employee that they are due to get, that’s, again, could be evidence of retaliation.

And it can be very helpful and powerful if it turns into a lawsuit down the road, and you can explain that ’we knew this person made this complaint. We knew they filed at the MCAD, and they still got a raise, or they still got a promotion.’ That can be very helpful, because ’how can you say I’m retaliating against you if I’m elevating  you in your job?’ So, just again, follow, kind of, whatever should have been done if you hadn’t known about this thing happening in the first place, and try to stay consistent.

Tom: Well, thanks, Courtney. That’s a lot to chew on, and it’s really so important. Courtney Cruz is an attorney and Employment Practices Liability Claims Manager at CRICO, which manages the defense of malpractice claims in the Harvard Medical System.

I’m Tom Augello for Medmal Insider.