Mike Daniels is a 300-pound mound of sound who played defensive tackle in the National Football League. After receiving more than a few personal foul penalties during his 10-year career, he explained that “the second guy always gets caught, that’s why you have to initiate instead of retaliating.”

Although I do not endorse engaging in conduct intended to provoke a retaliatory response (unless, of course, the provocateur is on my team and succeeds in getting an opposing player penalized), experience has taught me that Mr. Daniels is right - the retaliator typically gets caught.

In football the penalty for a retaliatory personal foul is measured in yards. In the employment arena, it is measured in dollars. Lots of dollars.

Protections against retaliation in employment

Title VII of the Civil Rights Act of 1964 prohibits retaliating against an applicant or employee for engaging in certain protected activities. Virtually all other federal and state employment laws include similar prohibitions.

In the context of Title VII, retaliation occurs when an employer takes a materially adverse action because an employee or applicant has asserted rights protected by the law. To establish a viable claim of retaliation, an employee or applicant must show that (1) he or she engaged in a protected activity, (2) the employer subjected the employee or applicant to a materially adverse action, and (3) the adverse action was caused by the protected activity.

Protected activities include, but are not limited to, filing charges with the Equal Employment Opportunity Commission, participating in an EEOC investigation, participating in an employer’s internal investigation into a complaint of discrimination or harassment, and complaining about or opposing actions that an employee reasonably believes to violate Title VII.

An employee’s complaint or charge need not be true to be protected. In fact, it can be flat-out wrong. The only requirement is that the employee reasonably believes the complaint to be true. Proving otherwise is no easy task.

According to the U.S. Supreme Court, “materially adverse” actions are ones that would deter a reasonable worker from coming forward to complain about discrimination. This is a pliable standard that often turns on the facts and circumstances of a particular situation.

Materially adverse employment actions clearly include ultimate employment actions like refusal to hire, termination, and demotion. But they can also include a broad array of lesser actions like transfers, negative evaluations, generating personnel records that might hinder promotion, denying benefits, exclusions from training, denial of perks (like vehicle use privileges), heightened scrutiny, and ostracism.

For a variety of reasons, proving the required causal connection for a retaliation claim can be easier than proving the intent needed to establish an employee’s underlying claim of discrimination.

Split decisions are not uncommon

Over the past several years, I have seen an increasing number of cases in which the judge dismisses a plaintiff’s claims of discrimination, while allowing the retaliation claims to proceed to trial. I also have seen an increasing number of cases in which a jury rejects the plaintiff’s claims of discrimination and then awards substantial damages for retaliation.

Most recently, a Plaintiff in California sued for age discrimination, disability discrimination, and retaliation. Her discrimination claims were dismissed, but last month a jury awarded her $41.5 million in compensatory and punitive damages for her retaliation claims.

Do I have your attention now?

The explanations for these split decisions include, but are limited to, the following:

• Some employees may sincerely evaluate all employment actions through a lens of discrimination. Others may try to explain their performance failures as being the product of discrimination. These individuals, and others who fall under the broad rubric of “difficult employees,” are more likely to submit complaints or charges of discrimination that have no reasonable basis in fact.
• Some supervisors (many of whom may be high on the authoritarian scale) may be predisposed to retaliate when falsely accused of discrimination. Others may react by keeping their distance from the accuser, while devoting time and attention to others. Simply put, turning the other cheek is easier said than done, and the potential for materially adverse actions against an employee who engaged in protected activity cannot be ignored.
• The combination of these facts often results in the materially adverse employment actions occurring close in time to the protected conduct.

For these and other reasons, proving retaliation can be easier than proving an underlying claim of discrimination. This may explain why the number of retaliation charges filed with the EEOC has been growing by double digits year after year.

Don’t win the war, only to lose the last battle

When an employee’s complaint of discrimination has merit, prompt remedial action should be taken, and the employee should not suffer any adverse actions for making the complaint.

When an employee’s complaint of discrimination lacks merit, equal care should be taken to protect against retaliation regardless of the employee’s motives for making the complaint.

At a minimum, a non-discrimination policy should include express prohibitions against retaliation along with the potential consequences for engaging in such conduct.

Supervisors should be trained and educated about not taking any unwarranted materially adverse actions against employees who make complaints of harassment. To the extent possible, supervisors accused of discrimination should not be included in any decisions to take adverse action against complaining employees.

HR managers should carefully monitor and review any materially adverse actions to be taken with respect such employees, in consultation with counsel.

A complaint of discrimination does not provide the complaining employee with immunity from discipline. But care must be exercised to ensure that such complaints do not become the provocation for unwarranted materially adverse actions.

In the NFL the penalty for retaliation is typically 15 yards. In employment law, it can be $15 million or more. Don’t be the second guy who gets caught.