Many employers are aware that they are not supposed to discriminate against employees belonging to certain classes protected by statute. A number of employers have also found themselves defending charges or lawsuits involving allegations of discrimination, or interference with rights under family leave, workplace safety, workers’ benefits or other laws. Some of those charges or lawsuits, may not have had any merit, but still ended up costing the employer large sums of money and blackened its reputation for a long time afterwards. A few employers may even find themselves tempted to respond in a way designed to ensure that the employee filing the charge or lawsuit is sorry s/he ever did so, and to send a message to other employees to think twice before doing anything similar. Quite a few employers have learned the folly of this approach after the fact and after the damage is done. Such behavior is known as workplace retaliation. Retaliation claims are on the rise, and can be even more damaging to an employer than the original underlying allegations. This week, The Emplawyerologist will provide a general definition and overview of retaliation and the types of federal statutes that protect employees against such behavior, which you can catch after the jump…What exactly is workplace retaliation? Workplace retaliation is a negative action by (or at the behest of) an employer against an employee who alleges or reports activities that s/he reasonably believes to be unlawful. Such activities can include harassment or discrimination (and those are the ones we seem to hear about most often) but can also include violations of other laws that either affect employees’ rights or even other illegal acts. The most common retaliatory actions by employers include discharge, demotion, refusal or failure to promote, negative performance evaluation, harassment to name just a few. We will discuss in more detail what type of conduct can be the subject of a retaliation claim in an upcoming post. In general, to make a cognizable claim (or in legalese a “prima facie case”) for retaliation, an employee, generally, must allege (and ultimately prove) the following:
- The employee opposed or participated in a complaint process alleging activity reasonably believed to be unlawful. This is often called “protected activity”AND;
- S/he was subjected to an adverse action, which has been described in general terms above and will receive more detailed treatment in an upcoming post, AND;
- There is a causal connection between the protected activity and the adverse action.
Is retaliation just another type of employee claim to add to a laundry list? Why should you as an employer be any more concerned about a retaliation claim than any other type of claim that an employee can bring against you? First, as I have already pointed out, retaliation claims are on the rise. According to the EEOC, retaliation charges increased by 55% between 2000 and 2009. 36% of all bias charges filed with the EEOC in 2010 were retaliation charges. You get the picture, right? That is just one area of law where employees can allege employer retaliation. There are many other laws that contain retaliation provisions. (Hang on, I will get to that in just a moment.)
Why else should employers be concerned about a retaliation claim? In many ways they are easier to prove than more seemingly “substantive” claims like discrimination, wage and hour law violation or the like. Judgments on retaliation claims can be at least as costly as those recovered on underlying claims, and–, the kicker— the employee does not have to win his or her underlying claim to win the retaliation claim. What??? How can that be? If I reasonably believe that my employer acted in a discriminatory manner toward me or another employee, or I reasonably believe that my employer is doing something else that is unlawful, and I oppose or cooperate in the opposition to such a practice, I am protected—even if it turns out that I am wrong about my employer, and it is found that my employer did not in fact engage in any unlawful practice or behavior. The employee does not need to be right. S/he just needs to be reasonable in his or her belief that the opposed practice is unlawful. Even if it is found that the employer did not commit the underlying acts alleged (leading to a dismissal of the underlying claim), if the employee can prove that the employer still retaliated against him or her for reporting or complaining about the alleged unlawful act, s/he will win the retaliation claim. The employee essentially gets a second chance to recover money damages against an employer that would have completely escaped liability if it had not attempted to get even. In other words, in the land of employment relations, revenge will be anything but sweet!
One more caveat for now: Almost any statute that covers employee rights contain anti-retaliation provisions. On the federal level, such statutes include without limitation:
- Title VII of the Civil Rights Act of 1964;
- The Age Discrimination in Employment Act:
- The Equal Pay Act;
- The Americans with Disabilities Act and the Americans with Disabilities Act Amendments Act;
- The Family Medical Leave Act;
- The Uniform Services Employment and Reemployment Rights Act;
- The Occupational Safety and Health Act;
- The Fair Labor Standards Act;
- The Employee Retirement Income Security Act.
There are also statutes known as “whistleblower” laws that protect employees who come forward to report, complain about oppose or cooperate with investigations about employer activity reasonably believed to be illegal or unethical. Many states have such statutes. The Sarbanes Oxley Act (SOX), which imposes record retention requirements on publicly held companies, also has whistleblower provisions. The Bottom Line is that it is illegal to retaliate against employees who in good faith report or oppose activity believed to be unlawful or unethical. The remedy may seem draconian to many employers. The rationale behind anti-retaliation laws is that the substantive laws have no “teeth” if employees and others will not report violations because they fear retaliation.
We now have an overview of the concept of workplace retaliation. Join The Emplawyerologist next week for a discussion of “who” can file and prevail in a retaliation claim. Until then, Happy Trails!
Disclaimer: Contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
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