Parties to a collective bargaining agreement bargain for and agree to follow certain procedures for the filing of a grievance. When employers and the union strictly follow the memorialized grievance procedures, they rarely, if ever, envision the grievant filing a retaliation charge with the U.S. Equal Employment Opportunity Commission (“EEOC”). Both employers and unions should no longer overlook potential retaliation claims in light of a decision issued just last week by the U.S. Court of Appeals for the Sixth Circuit that held placing a grievance on hold because the employee files an EEOC charge constitutes retaliation.
At issue in Watford v. Jefferson County Board of Education et al. are the grievance procedures in the collective bargaining agreement between the Jefferson County Board of Education (“the Board”) and Jefferson County Teachers Association (“the Union”). According to the grievance procedures in the collective bargaining agreement, if an employee believed that they were discriminated against, that employee could file a grievance with the Board. However, if the employee subsequently filed a charge with the EEOC, the collective bargaining agreement mandated that the grievance proceedings be held in abeyance until the charge was resolved. Joyce Watford was a teacher for the Board and subject to the terms of the collective bargaining agreement. After being terminated by the Board, she filed a grievance pursuant to the collective bargaining agreement alleging discrimination. At the same time she also filed a charge of discrimination with the EEOC triggering a stay of her grievance. Frustrated that her grievance was put on hold, Watford filed another EEOC charge and sued alleging this time that both the Board and the Union retaliated against her for filing an EEOC charge.
In its review of Watford’s suit, the Sixth Circuit determined that the stay in the grievance procedures constituted retaliation under both Title VII and the Age Discrimination in Employment Act (“ADEA”), reasoning that there was no difference between putting a grievance on hold and an outright termination of the grievance procedures. The Sixth Circuit explained that collective bargaining agreement provisions that force employees to choose between a grievance process and filing a charge with the EEOC are inherently retaliatory. In other words, Watford was presented with a false choice between resolving her dispute through the collective bargaining agreements grievance procedures or by filing an EEOC charge. Faced with this choice, the Sixth Circuit explained that reasonable employees would be discouraged from pursuing the statutorily protected activity of filing a charge with the EEOC.
There are several takeaways from this decision, which are as follows:
1. Employers should review collective bargaining agreements to ensure that the grievance procedures do not contain stay provisions similar to that in Watford v. Jefferson County Board of Education et al. If there is, the employer should invoke the labor management provisions under the collective bargaining agreement to meet and discuss this issue with the union.
2. The EEOC has broad-ranging jurisdiction that covers claims of retaliation even in circumstances such as those presented in Watford v. Jefferson County Board of Education et al. Collective bargaining agreement negotiated with the union are subject to the EEOC’s jurisdiction. To that end, employers must ensure that provisions within the collective bargaining agreements do not dissuade employees from filing charges of discrimination with the EEOC or the Illinois Department of Human Rights ("IDHR").
3. Irrespective of a collective bargaining agreement, make sure that an anti-retaliation policy covering the filing of administrative charges with the EEOC or IDHR is implemented. Every employee handbook should have a clear statement that retaliation is not tolerated and that any employee who engages in retaliation is subject to discipline, up to and including termination. The policy should also include a reporting process.
4. Provide training to supervisors who have to implement and follow collective bargaining agreements and policy on a daily basis.
5. Implement a second layer of review to avoid any inconsistencies and to make certain grievances are not mistakenly put on hold during the pendency of an EEOC or IDHR charge.
6. Keep protected activity confidential by limiting the number of people who know that an employee has filed a grievance and/or a charge of discrimination with either the EEOC or IDHR. The fewer people who know about the activity, the fewer people can be accused of retaliation.
We hope this information is helpful. Please contact us if you have any questions or if you need assistance in reconciling inconsistencies with either policy or a collective bargaining agreement.