Employment Attorneys Talk Ethics Hotlines, Defining Retaliation

In April, a Rome, Georgia, Sam’s Club store employee sued the company and its parent corporation, Walmart Inc., claiming she was wrongfully fired in retaliation for expressing her concerns to the company’s ethics hotline about pregnancy- and race-based discrimination.

The lawsuit, filed in the U.S. District Court for the Northern District of Georgia, seemed rare in that it involved allegations that a worker was fired for complaining to an ethics hotline about discrimination she faced on the job. But Ashley Wilson Clark, one of two employment lawyers interviewed by the Daily Report, said it’s not as unusual as you might think.

“I would say that it’s not a common circumstance but is certainly not uncommon. … I’ve personally represented numerous cases with facts involving a complaint to an ethics hotline and subsequent allegations of retaliation,” said Wilson Clark, a partner with Buckley Bala Wilson Mew in Atlanta.

Illegitimate Complaints

Matt Gomes of Weinberg Wheeler Hudgins Gunn & Dial. (Courtesy photo)

Matthew T. Gomes, a partner with Weinberg, Wheeler, Hudgins, Gunn & Dial in Atlanta, said he’s been involved in at least 10 ethics hotline-related cases in his 25-year career. Gomes cited data from the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency that investigates workplace discrimination claims.

In fiscal 2021, its most recent year reporting on workplace charge filings, it received 34,332 charges alleging retaliation. However, the EEOC said only a small percentage of those cases were legitimate.

“As one judge wrote in a legal decision dismissing a retaliation claim, ‘protection from retaliation for filing a complaint does not clothe the complainant with immunity for past and present inadequacies, unsatisfactory performance and uncivil conduct in dealing with subordinates and with his peers,’” Gomes said. “You still have to do your job. Unfortunately some people who complain don’t, and some complaints are not legitimate. As a result, the EEOC found ‘reasonable cause’ to conclude that unlawful retaliation had occurred in just 2.1% of those 34,332 cases, and by contrast it issued ‘no reasonable cause’ findings 61% of the time.”

Another recent case proves that point. According to a Society for Human Resource Management online article, in 2020, the U.S. Court of Appeals for the Fifth Circuit in New Orleans ruled against a Biloxi, Mississippi, Walmart store assistant manager who sued the company for retaliation and wrongful termination and another assistant manager for tortious interference.

The plaintiff, who’d been reprimanded by her supervisors three times for infractions that included absences, tardiness and criticizing hourly workers, reported to Walmart’s ethics hotline complaints about the store manager’s improper sexual conduct. She was later fired for an incident involving a customer accused of paying for only some of her groceries but then proved she’d bought all of them.

The Fifth Circuit found that, because another manager fired the plaintiff, Walmart was not retaliating and the firing was just. That case was captioned as Brown v. Wal-Mart Stores East LP, 5th Cir., No. 19-60719 (Aug. 14, 2020).

However, employees have won some wrongful firing-related cases. An article on the website for the Livelihood Law Firm in Denver provided nine examples of plaintiffs’ successes in filing wrongful termination lawsuits. All but three of the cases involved discrimination allegations, one regarded pregnancy-related discrimination claims and none involved ethics hotlines.

Ethics Hotlines’ Right Uses

Ashley Wilson Clark is a partner with Buckley Bala Wilson Mew in Atlanta. (Courtesy photo)

Both Gomes and Wilson Clark said companies’ ethics hotlines can be helpful tools for employees to report discrimination and other workplace problems if used correctly.

“An employer cannot correct potential issues in the workplace—including the problem of workplace discrimination—unless it has notice of them,” Gomes said. “Hotlines are just another mechanism to encourage employees to report their concerns. Sometimes employees may be too nervous to report a concern through normal channels, such as their direct supervisor or human resources. However, the employer needs to know about workplace problems; otherwise, it has no opportunity to correct them.”

Wilson Clark, who has spent about 12 of her 16 years as a licensed attorney in employment law, agreed.

“Often ethics hotlines allow employees to make complaints with a certain degree of confidentiality that doesn’t involve supervisors or HR employees on a local level,” she said. “It depends on how the company is structured and whether the ethics hotline is part of the company’s HR function. In some ways, ethics hotlines can help insulate employees from potential retaliation if ethics investigations conducted through the hotline are not brought to the attention of the individual who is the subject of the complaint.”

Regarding lawsuits based on pregnancy-related discrimination claims, Gomes again cited the EEOC stats, saying “it received 20,908 charges alleging race discrimination but just 2,261 alleging pregnancy discrimination.”

But Wilson Clark disagreed, saying “they’re very common,” based on her experience.

“We see cases all the time where women announce a pregnancy or an intention to take a maternity leave and see an adverse employee action including a termination,” she said. “Or a woman returns from a maternity leave and is subject to some sort of discrimination in the work place.”

‘Nobody Should Have to Put Up With That’

When asked what trends he’s seeing in employee discrimination cases, Gomes said too often workers misunderstand the meaning of words related to workplace-related issues, leading to some frivolous lawsuits.

“I see a lot of people making accusations that misuse words like ‘harassment,’ ‘discrimination’ and ‘retaliation,’” he said. “If your supervisor corrects something that you’re doing wrong, that doesn’t mean it’s harassment. If a co-worker has a prickly personality and is rude to everyone, that doesn’t mean it’s discrimination. If I complain that my co-workers talk too loud in their cubicles and, after they are counseled to keep it down, they start ostracizing me, that doesn’t mean it’s retaliation.”

Gomes added that judges weed out the illegitimate suits by often mentioning “that anti-discrimination laws do not create a ‘general civility code.’”

“They were passed, rightfully so, to stop people from making employment decisions because of legally protected characteristics like race, color, religion, gender, national origin, pregnancy, age or disability. Nobody should have to put up with that—and thanks to these laws, they don’t have to,” he said. “But the laws were not intended to ensure that the workplace is free of stress or criticism, or that employers have to act fairly or that they can’t make mistakes. When we were children, many of our parents told us, ‘Life isn’t fair.’ It turns out they were right. I would like to see more people realize that just because something happened at work that I don’t like, it doesn’t mean that I can sue for discrimination.”

Wilson Clark said she’s seen employees becoming “more and more empowered to stand on their civil rights in the employment context.”

“The less employees fear retaliation, the more likely they are to come forward and oppose unlawful workplace conduct, including discrimination,” she added.

‘Us vs. Them’

The two employment lawyers were also asked what their biggest concerns are regarding workers’ rights and the environments they are working in.

“My biggest concern is the availability of a civil remedy for employees whose rights are violated in the workplace,” Wilson Clark said. “Often when an employee starts a job, they sign away their rights to a jury trial through an arbitration agreement and don’t realize what it is they’re signing.”

Gomes added, “I hope employees understand how much most employers really do appreciate them. Most of my clients would tell you that their employees are their most valuable asset. Whether they work at a manufacturing plant or providing services to customers, employees who feel valued by their employer tend to be happier, more satisfied, more productive, more efficient, less likely to call off from work and less likely to suffer on-the-job injuries.

“It therefore is in everyone’s best interests to make that company a great place to work, and to keep it that way. Nowhere is perfect, so there probably can be some room for improvement. However, I worry that there is too much ‘us vs. them’ mentality in politics and popular culture these days, and hope that doesn’t seep into the workplace.”

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This article was updated at 2:20 p.m. May 18 with Ashley Wilson Clark’s clarified quotes.