Workplace retaliation claims have become one of the most frequently filed claims in employment-related lawsuits. Retaliation appeared in 51.6 percent of all 2018 Equal Employment Opportunity Commission (EEOC) charges, prevailing over all other discriminatory bases to claim the top spot for the ninth year in a row. This comes as a surprise to many employers and often leaves them wondering where these claims come from and what they can do to fight the rising tide.
Numerous federal and state laws prohibit adverse actions against employees or applicants for alleging discrimination, harassment, or other violations of law by employers. These protections extend to employees who participate in protected activities or oppose unlawful practices by lodging complaints with their employers, filing charges/complaints with government agencies, participating in investigations, supporting others who have alleged prohibited conduct, or refusing to engage in prohibited conduct. Once an employee takes action, employers must take extreme care to avoid any perception the employee is being punished for exercising their protected rights.
This perception may arise when an employer takes an action that is materially adverse to the employee. Some adverse actions raise more suspicion than others, such as threats, demotion, discipline, termination, or salary reduction. However, some more subtle actions may still carry risk, such as giving a negative performance evaluation, failing to promote the employee to a new position, changing job or shift assignments, or even displaying “hostile” attitudes. For example, under Title VII of the Civil Rights Act of 1964, a materially adverse action may transform into retaliation if the action would dissuade a “reasonable” employee from filing a charge with the EEOC. Moreover, if the employee’s exercise of protected activity is a motivating factor in the decision to take the adverse action, it may be construed as retaliation regardless of the employer’s intent or whether the employee’s original allegation turns out to be unfounded.
How to Protect Your Company Against Retaliation Claims
While the potential for retaliation claims presents an ongoing challenge for employers, there are steps employers can take to protect themselves against retaliation claims and reduce their exposure once a claim has been filed.
1. Have an Anti-Retaliation Policy
Employers should ensure strong whistleblower and anti-retaliation policies are in place. Such policies should be all-inclusive. For example, make sure the prohibition of retaliation is not limited to the anti-harassment policy alone. As with any other policies that rely on employees coming […]