Peter Panken Quoted in “Plaintiffs’ Lawyer, Management Counsel Say Nassar Hasn’t Hindered Retaliation Claims”

Bloomberg BNA's Daily Labor Report

Peter Panken, a Member of the Firm in the Labor and Employment practice, in the New York office, was quoted in an article titled "Plaintiffs' Lawyer, Management Counsel Say Nassar Hasn't Hindered Retaliation Claims."

Following is an excerpt:

Federal anti-retaliation laws continue to provide important protections to employees and create liability risks for employers, despite a recent U.S. Supreme Court ruling that many believed would limit employment retaliation lawsuits, attorneys said Feb. 28 during a seminar.

"Retaliation is probably the most significant item that is going today," management-side attorney Peter M. Panken of Epstein, Becker & Green PC in New York said at an American Law Institute-Continuing Legal Education program. He said retaliation claims are asserted in 36 percent of the discrimination charges filed with the Equal Employment Opportunity Commission.

He said in many cases the underlying discrimination claim is dismissed at or prior to the summary judgment stage, while the retaliation claim makes it to trial. ?...

Panken said most retaliation cases are resolved at the summary judgment stage, where the question of the employer's intent is central.

An employer "must intend to retaliate" in order to be found liable under federal employment laws, he said. Except where proof of but-for causation is required, workers must show that "getting even was a motivating factor" for the employer's adverse job action, he said. ?...

Panken said the best way for employers to protect themselves against retaliation claims is to establish clear written rules for supervisors prohibiting retaliatory acts and to actively document all workplace issues raised by employees.

In addition, he said, employers should educate supervisors and assess whether they can be trusted not to retaliate when accused by a subordinate of job discrimination.

He said it also is crucial for employers to establish a workplace grievance procedure and to require complaining employees to clearly specify the claims they are making. "And get it in writing," he said.