Retaliation in Discrimination Matters: A View from the MCAD

Having spent seven years as Commissioner of the Massachusetts Commission Against Discrimination, I have come to the realization that the charge of retaliation can lead to big and perceived problems for an employer.  I am only going to discuss two of ways that retaliation can impact an employer.  The first relates to an employee who brings a sincere claim of discrimination, harassment or failure to accommodate to the employer's attention.  An employer’s first instinct may be defensive.  The employer is angry at being accused of discriminating against an employee, and takes an adverse employment action against the employee.  The employee then files a claim of discrimination and retaliation against the employer.  The Commission may find a lack of probable cause on the charge of discrimination, but a finding of probable cause on the retaliation.  In order for an employee to prevail on a charge of retaliation, there does not need to be a finding that the employee was discriminated against.  An employer who is confronted with a claim of discrimination, harassment or failure to provide a reasonable accommodation by an employee should listen to the employee’s complaint, conduct a prompt impartial investigation, and take appropriate action.  Following these three steps should reduce the chance of a claim of discrimination and retaliation being filed, and, if filed, increases the chances  the charge of retaliation will also be dismissed.

A second source of retaliation claims involves an employee who believes that he/she is about to be fired.  To protect from being fired, the employee goes to the employer, alleging discrimination, harassment or failure to provide a reasonable accommodate by the employer.  The employee knows that by alleging a claim of discrimination, that the employer could be faced with a claim of retaliation as well as claim of discrimination, if the employer terminates the employee after being informed that the employee believes that he/she exercising a protected activity.  This course of action by the employee does not mean that you still cannot move forward with the termination.  An employer’s best defense to avoid such a charge is to document, document, document.  If employer documents the issues it has with an employee and informs that employee of the problems informally throughout the employment and during the review processes, an employer may end up with a better employee and/or reduce the risk of having a charge of discrimination and relation filed against it.  It will also, if a charge of discrimination and retaliation is filed, increase the probability that the charges will be dismissed. 

First Circuit Enforces Non-Solicitation Agreement in Favor of Employer

Can a former employee circumvent a non-solicitation agreement if he or she merely accepts business from former customers and does not actively solicit them?  Recently, in a decision sure to please employers, the First Circuit Court of Appeals said no—not if the employee plays a role in “piquing” the customers’ curiosity and “inciting” their initial contact.

In Corporate Technologies, Inc. v. Harnett, an account executive argued that he was not in breach of a non-solicitation agreement because the customers in question had initiated contact with him, not vice-versa.  Rejecting this argument, the First Circuit found that the identity of the person making initial contact was not determinative and that it was simply one fact to be considered along with many others.  In this case, the “other facts” included a blast email that the account executive had sent to a targeted group of prospective clients, including the customers in question, announcing his new job at a competing business.  Notably, the customers reached out to the account executive only after they received the email.  The First Circuit found that this targeted email, which was designed to “pique customers’ curiosity,” clearly crossed the line from mere acceptance of business to active solicitation. 

The result in Corporate Technologies is good news for employers.  Although the decision makes clear that employees are entitled to make public announcements of changes in employment, it also makes clear that employees may not use those announcements in creative ways to circumvent valid non-solicitation agreements.

Authored by Kevin Haskins, attorney with Preti Flaherty's Employment Law Practice Group.  For more information on employment related matters, contact Kevin at 207-791-3076 or a member of the Employment Law Group.