$1.95 Million for Retaliation Against Compliance Experts 9:19, May 5, 2017

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$1.95 Million for Retaliation Against Compliance Experts

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The American Dental Association (Association) paid $1.95 million to resolve Equal Employment Opportunity Commission (EEOC) charges that it fired two employees in retaliation for their complaints about violations of federal anti-discrimination laws.

According to the EEOC, the Association fired its former chief legal counsel, Tamra Kempf, and its director of human resources after they complained to the Association’s board of directors about potential violations of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA).

In its own press release, the Association stated that the employees’ claims were without merit but that it was better to settle than to go to trial.

As part of the agreement, the association will conduct training on Title VII, the ADA, and the ADEA for all employees at its Chicago headquarters.

The EEOC press release stated that:

According to Julianne Bowman, director of EEOC’s Chicago’s [sic] District Office, this resolution demonstrates the critical role that human resources professionals and legal staff play in ensuring that corporations comply with the nation’s equal employment opportunity laws.

Bowman went on to say:

The position of EEOC is that human resources professionals and in-house lawyers who advise their employers to abide by anti-discrimination laws are engaged in protected activities, and any retaliation against them for doing so is illegal.

Retaliation is the Most Common Complaint to the EEOC

According to the EEOC’s data for 2015, the most common charge raised by workers was for retaliation. Retaliation is so prevalent that federal agencies have issued specific guidance and recommendations about it. In 2016 the EEOC issued retaliation enforcement guidance, and in 2017 the Occupational Safety and Health Administration (OSHA) recommended anti-retaliation training for managers and employees.

It’s especially foolhardy for employers to retaliate against employees who are compliance experts and who are trying to keep the employer from violating the law. These employees are hired for their expertise, and employers should take advantage of their knowledge to limit the damage that has been done. As we’ve said before, companies benefit from internal whistleblowing. They should be especially responsive when the whistleblowing comes from its own lawyers and human resources personnel.

For this reason, in a report on retaliation and whistleblower claims by in-house counsel, the law firm Littler Mendelson, P.C. advises that if a key manager or executive refuses to correct a violation:

attorneys should be instructed that a specific report must be submitted so that the employer has the opportunity to take corrective action and stop the misconduct from occurring or continuing. This supplemental reporting procedure . . . should include a failsafe reporting outlet directly to the employer’s board of directors.

In this case, the Association’s chief legal counsel and its director of human resources took their concerns to the board of directors. And yet the Association retaliated by firing them, letting itself in for a big fine and bad publicity.

The EEOC anti-retaliation guidance makes it clear that a company can be liable for retaliation even if the company wasn’t guilty of the conduct that the employee was complaining about. So employers need to take every complaint seriously.

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Christine Day
Christine Day is a legal editor at EverFi. She writes about employment law issues and tracks case law and legislative and regulatory updates. Before joining EverFi she worked in legal publishing, researching and writing about tax law, business law, and employment law. She earned her JD from the University of San Diego Law School and her BA from the University of Southern California.

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