Limit your Liability: Discouraging Retaliation Complaints

The U.S Equal Employment Opportunity Commission (EEOC) announced an increase in complaints of retaliation for a second year in a row. In the 2011 Fiscal Year, the EEOC received a record 99,947 charges of employment discrimination, which trumps the 99,922 claims filed in 2010. Specifically, statistics show claims of retaliation accounted for 37.4 percent of the charges, surpassing complaints regarding violations of Title VII (discrimination on the basis of sex, race, color, religion and national origin).

 Retaliation occurs when an employer takes adverse action against an individual because the individual partakes in a legally protected activity or participates in a complaint against the employer. Most retaliation suits are filed by employees who claim their bosses fired or mistreated them after they filed a discrimination claim or participated in a “whistleblowing” activity. For an employee to assert a retaliation claim the following must be present: (1) the employee participated in a protected activity (i.e. opposing an unlawful activity); (2) there was an adverse employment action present (i.e. denial of raise or termination); and (3) there is a connection between the employees’ involvement in the protected activity and the adverse action.

Reasons for Increase in Retaliation

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As illustrated by the EEOC Chart, retaliation claims are rising faster than any other category of complaint. There are several proposed contributors to the increase in retaliation claims. A difficult economy and an increasing unemployment rate has caused many employees to stay at their jobs instead of seek employment elsewhere when faced with retaliation or unlawful employment practices. Additionally, more employees would rather challenge their employer’s practices and decisions instead of changing their jobs. Another contributor is the fact that employees have an increased understanding of the laws governing retaliation. From an employee perspective, retaliation claims are often easier to prove than discrimination or harassment claims . Furthermore, the U.S Supreme Court’s expansion of the anti-discrimination laws also contributes to the increase in retaliation. In 2006, the Supreme Court lowered the standard that employees must meet to win a retaliation claim under federal anti-discrimination laws. Specifically, the court determined that an employee need only show that the employer took an action that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

With soaring statistics in 2010 and now in 2011, evidence suggests that retaliation complaints will continue to grow in 2012. Many employers seek resources to proactively deter employees from filing retaliation claims. Currently, the Department of Labor provides retaliation guidelines under the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act  (FMLA).

 The American Medical Association encourages employers to use the following Best Practices as a means to avoid a retaliation lawsuit and/or increase the chances of winning a legal dispute when presented with the issue.   

 Ways to Avoid Retaliation Liability

  • Employers should research and become acquainted with the laws governing retaliation. Federal law prohibits retaliation under the Civil Rights Act, American with Disabilities Act, Age Discrimination in Employment Act, Fair labor Standards Act, and Family and Medical Leave Act.
  • Employers can mandate a Zero Tolerance Policy for retaliation and investigate all the cases of discrimination before producing an output. All employee concerns brought forth should be handled in a fair and consistent manner that illustrates that every employee is governed under the same policies.
  • All arising complaints should be kept confidential .
  • Employers should implement a comprehensive policy to manage employee expectations and outline the procedures to follow when a retaliation claim is made. This written policy should be given to all employees.
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