Retaliation Claims Take Center Stage


It is time for a brief refresher on retaliation claims. Consider:

• According to the EEOC, for fiscal year 2010, there were more retaliation charges than any other type of charge.

• Several years ago, the U.S. Supreme Court ruled that the anti-retaliation provisions of Title VII are not limited to actions that impact terms and conditions of employment. Rather, they prohibit any employer action that might dissuade a reasonable worker from making or supporting a claim of discrimination.

• In January 2011, the U.S. Supreme Court overruled the U.S. Court of Appeals for the Sixth Circuit and concluded that a former employee could bring a case of retaliation by alleging that his employer fired him to retaliate against his fiancée because of her complaints of sex discrimination (the fiancée also worked for the employer). The fact that the employer chose not to terminate the employee who actually complained of discrimination did not remove the case from the protections of Title VII’s anti-retaliation provisions. Neither did the fact that the case was brought by the employee who was terminated rather than the fiancée to whom the alleged retaliation was directed. See, Thompson v. North American Stainless, LP, U.S. Supreme Court Case No. 09-291. This decision illustrates the broad coverage of the anti-retaliation provisions of federal discrimination law.

• In March 2011, the U.S. Supreme Court overruled the U.S. Court of Appeals for the Seventh Circuit (Indiana’s circuit) and concluded that oral complaints are covered by the FLSA’s anti-retaliation provisions as long as a reasonable employer would understand the complaint as an assertion of rights under the FLSA. See, Kasten v. Saint-Gobain Performance Plastics Corp., U.S. Supreme Court Case No. 09-834. This decision likely will result in more “He said-She said” cases under federal wage and hour law, an area of the law in which litigation already is exploding. “He said-She said” cases often require a trial so that a jury may evaluate credibility.

• It is getting increasingly difficult for employers to fully understand the risks of retaliation because a growing number of industry-specific statutes, the main focus of which is not employment, contain provisions that prohibit retaliation against employees for reporting misconduct to governmental entities responsible for overseeing the industry in question. Human Resources now must have command not only of the vast number of general employment laws, but also laws specific to their industry.

• The prohibition against retaliation generally covers former employees. Consider establishing a reference protocol that centralizes references in a single department, like Human Resources, rather than authorizes individual managers and supervisors to give their own references, including on-line references.

• It is not uncommon for employers to successfully defend underlying claims of discrimination, harassment, failure to pay overtime, or other violations of applicable law, and lose a retaliation claim filed by the person who made the complaint of wrongdoing. Supervisors and managers should be reminded that the complaining employee does not have to be right (i.e., that a violation of the law occurred) to be protected. The employee simply needs to raise the concern in good faith.

• Retaliation claims are particularly challenging for employers because they are not as well-suited as other types of claims for resolution by a judge without the need for a trial. Retaliation claims often involve suspect timing and other facts that lead judges to conclude a jury should decide the matter based on credibility of witnesses.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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