“Election of Remedies” Clause Constitutes Per Se Retaliation, Getting Employer and Union in Trouble

Employers sometimes have policies that, while they seem sensible, run afoul of the law.  One such area is in the investigation of discrimination claims.  Some employers have a policy that says something like “we will investigate a concern that you bring to our attention, but we will stop doing that if you go file with the EEOC.  Then we will let the EEOC investigate.  The reasoning behind the policy is that it will avoid a duplication of effort.   Why should the employer continue to investigate if the EEOC will do the job?

Well, this sort of policy will get an employer in trouble.  A number of courts over the years have held that stopping an internal investigation when someone goes to the EEOC constitutes illegal retaliation – taking a materially adverse action (stopping an investigation) that would persuade a reasonable employee not to engage in protected activity.

This analysis was used by the court in Trayling v. AFSCME Local #2955 (W.D. Mich. June 19, 2013), which held that a collective bargaining agreement’s grievance procedure that contained an “election of remedies” provision constituted per se retaliation under the Age Discrimination in Employment Act and Americans with Disabilities Act.

After Trayling was laid off, she filed a grievance challenging the decision.  A few weeks later she filed a charge with the EEOC, claiming age and disability discrimination.  The employer and union then refused to process her grievance, because of the CBA clause that said “[i]f an employee elects to use the grievance procedure provided for in this contract and, subsequently, elects to utilize the statutory or administrative remedies, then the grievance procedure provided for hereunder shall not be applicable and any relief granted shall be forfeited.”

Relying on a Seventh Circuit case from 1992, EEOC v. Bd. of Governors (7th Cir. 1992), the court held the clause
constituted retaliation under the ADA and ADEA.  “[A]n employer’s desire to avoid duplicative litigation may indeed be reasonable but nonetheless does not rebut the claim that the employer discriminated against employees who engaged in protected activity,” the court said. “[T]he election-of-remedies provision here is retaliatory per se because the employee’s participation in the statutorily protected activity (pursuing her legal remedies) is the determining factor in the employer’s decision to take the adverse employment action (the termination of the contractual remedy).”

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