Retaliation claims are increasing—and employers, managers and supervisors should become informed so that precautionary and preventive measures can be taken. Retaliation claims are costly and can do serious damage to a business.
“In Fiscal Year 2008, EEOC received 32,690 charges of retaliation discrimination based on all statutes enforced by EEOC. The EEOC resolved 25,999 retaliation charges in 2008, and recovered more than $111 million in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation).”
The above information can be found at the “Retaliation” section of the US Equal Employment Opportunity Commission (EEOC) Web site.
In an employment or workplace setting, retaliation is generally defined as taking adverse action against an individual because he or she complains about harassment or discrimination. Examples of adverse action can include the following:
- Punishing an employee
- Demoting an employee
- Firing an employee
- Reducing an employee’s salary
- Submitting a negative evaluation
- Changing job or shift assignments
- Displaying a hostile attitude
Retaliation issues are legally complex, so employers will want to consult with an HR professional and/or legal counsel to ensure that managers and supervisors are well trained in preventing retaliation claims. These professionals can help employers establish clear policies against retaliation, as well as develop communication and documentation procedures.
Basically, employers should consider that individuals falling within various groups have the potential to file retaliation claims. According to information provided by CCH Research, a Wolters Kluwer business, these groups of individuals are protected, as summarized below:
Employees
When employees complain of harassment or discrimination, an employer cannot retaliate against them. Whether an employee complains to his or her supervisor, or to a government agency, an employer cannot take any action against that employee.
Employers should know that the US Supreme Court unanimously ruled that an employee who speaks out about discrimination is protected under the opposition clause of Title VII (of the Civil Rights Act of 1964).
Applicants
Applicants are also generally protected from a wide range of retaliatory acts by an employer.
Former employees
Although Title VII refers to retaliatory acts directed against applicants and employees, the Supreme Court has held that the prohibition on retaliation can include reprisals against former employees.
Generally, post-employment retaliation claims can be allowed when:
- it is the termination itself that gives rise to the protected act of filing a Title VII action; or
- retaliation results in termination from a later job; or
- a refusal to hire, or other professional or occupational harm.
Additional relevant information provided by CCH:
- Like Title VII, the Age Discrimination in Employment Act protects employees or applicants.
- The Fair Labor Standards Act refers only to employees. Post-employment discrimination claims under these laws are usually analyzed by the courts in the same manner as claims under Title VII.
- What if the employee was not the original target? Since anyone can oppose unlawful discrimination and participate in proceedings intended to stop discrimination, Title VII's retaliation prohibition can be raised by anyone, even if they were not themselves victims of the original discrimination.
As you can tell, and as previously stated, issues surrounding discrimination, harassment and retaliation involve complex legal matters. Therefore, employers should consult with an HR professional or legal counsel for definitive guidance.