Retaliation Claims: So Common, and So Stupid

Retaliation is now the leading basis for charges against employers, and it remains the stupidest of all charges. Stupid because most retaliation charges can be avoided if managers and supervisors just think before they act.

Laws prohibiting retaliation as a form of workplace discrimination have expanded rapidly in the past few years, says Joan S. Farrell, J.D., BLR Legal Editor. New state and local fair employment laws have been enacted with provisions prohibiting retaliation, and decisions by courts and regulatory agencies have broadened the scope of coverage for existing laws.

The upshot? Retaliation is now the most common charge filed by employees.

Federal laws like Title VII of the Civil Rights Act, the Fair Labor Standards Act, and the Family and Medical Leave Act prohibit retaliation by employers when an employee complains of workplace discrimination or otherwise engages in “protected activity” like being a witness in an investigation or filing a workplace discrimination charge with the EEOC.

Many other statutes, both state and federal (e.g., whistleblower statutes, state workers’ compensation statutes, laws governing jury service) contain retaliatory prohibitions as well.

Further, under a recent decision by the U.S. Supreme Court, an employer can’t take adverse action against an employee based on a close relationship with an employee who’s engaged in protected activity.

And based on another Supreme Court decision, the U.S. Department of Labor has stated that protected activity under the Fair Labor Standards Act includes both oral and written complaints, including those made to an employer.

Steady Climb of Retaliation Suits

Not surprisingly, the number of retaliation claims filed with the EEOC has been climbing steadily for years, and now retaliation claims are the most frequently filed type of workplace discrimination claim. The EEOC reports that charges alleging retaliation were the most numerous in 2011, at 37,334 charges received, or 37.4 percent of all charges.

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Retaliation Often Survives

What’s particularly frustrating for employers is that a retaliation claim can survive even when the underlying complaint of workplace discrimination is dismissed.

That’s because the legal standards for proving retaliation are different from the standards for proving discrimination in employment. Generally, an individual can establish a retaliation claim by showing that:

• he or she engaged in a protected activity,
• he or she suffered an adverse employment action, and
• there was a causal connection between the protected activity and the adverse employment action.

One might think that showing the “causal connection” would be difficult, but it’s often shown simply by timing—for example, a termination occurred soon after an employee made a protected complaint. The employee alleges that this “proves” that the negative action was retaliation for the protected act.

While timing isn’t “proof,” it can be used as evidence and can be hard to refute. (Conversely, a longer span between a protected act and alleged retaliation typically weakens the employee’s argument that the adverse action was taken in response to the protected activity.)

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Why Are Retaliation Suits So Prevalent Today?

Aggressive attorneys have realized that retaliation suits are “low-hanging fruit.” They are relatively easy to tack on to another suit, and as mentioned above, they often survive even when the underlying suits fails. For example, here’s how it could often go:

• Employee sues the company, alleging race discrimination.
• Two weeks later, employee is fired for “poor performance.”
• Employee adds retaliation to the lawsuit, claiming that the termination was retaliation for having filed the race discrimination suit.
• Judge rules against the employee on the race discrimination complaint.
• The “poor performance” reason for the termination falls apart when recent performance appraisals say “Good.”
• The retaliation claim succeeds.

In tomorrow’s CED, what to do to prevent retaliation suits.

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