2007 International
Conference
The Employer Strikes Back,
or so the Retaliation
Claimant Says
Washington, D.C. ~ November 7-9, 2007
The Employer Strikes Back
Panel Members
• MODERATOR: Thomas Paschos, Attorney
at Law, Thomas Paschos & Associates, PC
• Wendi Barish, Partner
Weber Gallagher Simpson Stapleton Fires & Newby LLP
• Thomas Katona, Managing Member
Apogee Insurance Group LLC
• Gene Mason, Vice President
W.R. Berkley Company (Watch Hill Division)
• Anthony J. Fowler, Assistant Vice President
& Claims Counsel
The Hartford
Why and How Burlington
has Changed the Game
• What are the trends in retaliation
claims post Burlington?
• What is the affect on underwriting?
• What is the market doing in light of
Burlington?
Why and How Burlington
has Changed the Game
• What can Insurers/Employers/Legal
Counsel do to Protect Against
Retaliation Claims?
• How is the EEOC reacting in light of
Burlington?
• How Proactive Must Insurers/
Insureds/ Employers/ Legal Counsel
be in light of Burlington?
Burlington Northern
v. White
• Supreme Court, 2006
• Employee reassigned to another position
with same pay and benefits
• Employee claims higher scrutiny lead to
suspension which was overturned
• Court found conduct could be found to be
retaliatory
• Reasonable employee standard emerges
(a/k/a employers’ nightmare created)
McGowan v. City
of Eufala
• Third Circuit, 2006
• Employee claimed retaliation for supporting
a co-worker’s claim
• Suspension, denial of reassignment,
harassment
• Termination/Suspension for prisoner
hanging with belt
• Court found retaliation claim lacked
evidentiary support to show proximate
cause
• Lesson: document, document, document
Williams v. W.D. Sports
• Tenth Circuit, 2007
• Female hockey player claims retaliation
after claiming sexual harassment
• President confronts her with rumors of
sexual relations with players, coaches,
season ticket holders; suggestion to resign
as continuing might ruin marriage
• Court found President’s conduct could be
retaliatory
• Lesson: don’t go there!
Jenks v. Modern
Woodman of America
• 2007, Tenth Circuit
• Employee was a manager at an insurance
company.
• Demotion and termination results in settlement of
claim.
• Reapplies after receiving form letter and is denied
employment based on release
• Court found conduct did not constitute retaliation.
• Lesson: do not invite people who have sued you to
reapply for a position. Make sure release includes
language specifying no re-employment.
Michael v. Caterpillar
Financial Services
• 2007, Sixth Circuit
• Employee gets involves in a dispute and is placed
on leave, files EEOC Complaint same day claiming
race discrimination.
• Internal investigation of dispute results in places on
90 day performance plan or job transfer.
Successfully completes performance plan.
• Ultimately transferred and promoted.
• Court found no retaliation.
• Lesson: employees can still do wrong in the eyes
of the court.
Hare v. Potter
• 2006 Third Circuit
• Postal worker claims sexual harassment
and files EEOC claim.
• Requested time off for deposition and was
told not so nicely by Supervisor to drop case
and starts receiving harsher treatment by
Supervisor.
• Postal worker has mental breakdown, ends
up on leave and Supervisor changes locks.
• Court found conduct = retaliation.
• Lesson = order your stamps online.
Kessler v. Westchester
County Dept. of Social
Services
• 2006, Second Circuit
• Employee claimed he was denied
promotions due to age, gender, and religion.
• Transferred to Yonkers, same pay and
benefits but less people to supervise
• Court found conduct could be considered
retaliatory.
• Lesson: Do not transfer people who claim
discrimination just because you can.
How is Burlington
Impacting the
Underwriting Side?
• Burlington has changed the game
• Retaliation exposure touches all industry
groups and risks of all sizes
• Reinsurance underwriters are digging deeper
• Underwriters updating forms and applications
• Plaintiff lawyers desire to get into the courtroom
• Concern over increased defense costs and up
tick in claims
Market Impact
Comparison from 2000 to 2006

Retaliation claims, all statutes, have risen from 27.1%
of all EEOC claims to 29.8% or up 2.7%
 Retaliation Claims for Title VII only, has gone from
24.7% to 25.8% in 2006 or 1.1% increase
 Age discrimination risen from 2000 to 2006 by 1.8%
 Sex discrimination gone down from 31.5% to 30.6%
 Race down from 36.2% to 35.9%
*Source EEOC.gov charge Data System
Market Impact
Insurance Carrier Reaction
• Soft market impact is far•M
greater than Burlington
a aggressive
Northern, competition still
• Offering multiple year
renewal application
r
k
terms
sometimes without
• Higher Deductibles in larger employee insured’s
• Little impact on under 200 employee accounts
• Carve back for retaliation, especially union NLRA
exclusions
• More documentation required
Claims Impact
Frequency of claims
• Retaliation tacked on to discrimination claims
• Liability analysis-Change the game, broader
standard-reasonable person-(inherently broader)
• Damages analysis- huge potential for greater
damages due to retaliation component (Isaiah
Thomas case)
• Cases more difficult to settle early
• Advantage Plaintiff
• High Plaintiff demands likely
Market Impact
Still seeing:
 Full Prior acts
 Defense outside the limits
 Deductibles as low as $1000 for under 200
employees, higher deductibles for over 200.
 Policy Language changes coming
 Typical exclusions like FSLA (Fair labor) NLRA
(Labor Relations) OSHA etc can evolve into
Retaliation defense but have specific language
excluding retaliation.
 NLRA typical provisions exclude “discharging or
discriminating” outdated definition
Helpful Tips for Employers
to Protect Against
Retaliation Claims
• Employer should modify their employment
policies and handbooks to include reference
to retaliation as a prohibited practice.
• Managers must be trained on compliance
and understand the new definition of
retaliation.
• Employees must be advised of the company
policy prohibiting retaliation for any type of
protected activity.
Helpful Tips for Employers
to Protect Against
Retaliation Claims
• Standard best practices consist of written procedures
on how to report a complaint of retaliation, insuring
prompt and effective investigation and giving
feedback to the complaining party about the results
of the investigation.
• Consider immediate separation of the complaining
party from the alleged harasser.
• Assign a neutral party (i.e. human resource
representative) to monitor the situation after a
complaint is made.
• Establish a moratorium on any potential adverse
action against a complaining employee.
Underwriting
Considerations
Post- Burlington:
• Updating applications to address
retaliation exposure
• Use of higher deductibles
• Breakdown prospective Insured’s
policies and procedures for reporting a
claim, investigating a claim, providing
feedback
• Documentation procedures
Underwriting Considerations
Post-Burlington:
(cont’d)
• Whether or not the prospective
insured’s policies include the
appointment of a neutral party to
monitor a situation after a complaint
has been made?
• Appointment of an Ombudsman
• Employers history of complaints
Underwriting Considerations
Post-Burlington:
(cont’d)
• Employee turnaround
• Recent mergers or acquisitions
• Changes in senior management (possible
“whistle blower” potential)
Market Conditions:
Impact on Claims
• Broader terms
• Greater frequency and severity
• Increased limits and deductibles
• Carriers have increased skin in the
game
Five Key Lessons:
Burlington has
Changed the Game
1. Burlington has dramatically changed how we
handle employment discrimination actions.
2. Everyone must be proactive. Retaliation exposures
touch all industry groups and risks of all sizes.
3. Increased frequency potential and increased
defense cost potential.
4. Education and training is critical all the way
around. Market will dictate increase in EPLI sales.
5. Employers must modify employment policies to
prohibit retaliation.
Audience
Q&A
Many thanks to …
•
•
•
•
•
Wendi Barish
Anthony J. Fowler
Thomas Katona
Gene Mason
Thomas Paschos