Dive Brief:

• Roper Pump Company may have retaliated against a worker by basing his employment status on his willingness to sign a release of claims after he complained of race discrimination, the 11th U.S. Circuit Court of Appeals ruled (Brad Knox v. Roper Pump Company 18-11756 (11th Cir. April 30, 2020)).
• Brad Knox violated his employer's workplace violence policy when he allegedly fought with his daughter, also a Roper employee, at their shared home. When his daughter reported the incident, the company suspended Knox, which prompted him to complain about discrimination. Knox, who is African-American, said white employees had been allowed to continue working after violating the policy. Knox was told he could keep his job if he took an anger management course during his leave and signed an agreement that included a release of all claims, "including, expressly, Title VII claims," the court said. When Knox refused to sign the agreement on those terms, Roper fired him.
• Applicable case law makes clear that employers retaliate by "conditioning continued employment on a release of claims and firing the employee for refusing" as a response to race discrimination, the 11th Circuit said, reversing a district court's ruling for summary judgment on Knox's retaliation claim. The appeals court affirmed the trial court's ruling that Knox failed to show discrimination, however.

Dive Insight:

The U.S. Equal Employment Opportunity Commission received 72,675 workplace discrimination charges in its 2019 fiscal year. Among them, retaliation appeared the most frequently. Complaints of retaliation often accompany charges of age, race, disability and other claims. "Name the [employment] law, and it has a retaliation provision," Fisher Phillips Regional Managing Partner Christine Howard previously told attendees at a conference. "You're not going to find an employment law that doesn't have a retaliation provision."

To avoid these charges, employers must ensure they recognize protected activity — the act of opposing discrimination or harassment. For instance, workers can carry out protected activity by making a discrimination complaint or participating in an internal investigation into alleged misconduct. Once an employer has identified protected activity, it's important that it avoid what Howard called "retaliation red flags" such as increasing supervision, highlighting new performance issues or heightening standards or expectations. 

This doesn't mean protected activity insulates workers from discipline. Timing alone can establish a prima facie case of retaliation, attorneys previously told HR Dive. But employers can issue discipline following protected activity so long as they can show they issued it for a non-retaliatory reason.