THE RETALIATION CLAIM
A Legal Minefield
For Employers
Retaliation Claims
 A favorite
new employee claim
 EEOC filings up dramatically
 Included in 1/3 of all discrimination
suits
 A “high risk” exposure for employers
Understanding the Retaliation Claim
“10 Questions”
1. “Retaliation” Law – What Is It
About?
Protection for an employee who
complains about or opposes
illegal employer activities
2. Retaliation Claims – What Legal
Basis?
 Federal
law
 Title VII, Civil Rights Act of 1964
 Other Civil Rights Laws – ADA,
ADEA, FLSA, FMLA, OSHA
 Federal Claims Act and Whistleblower
Protection Act
 First amendment, U.S. Constitution
2. Legal Basis (cont)
State law
 Workers’ Compensation Laws
 Whistleblower Statutes
 Miscellaneous Laws
 Statutory “right to complain”
 Focus of discussion – Title VII

3. What Are Protected Activities?
 “Participation”
activities
 Filing a claim with EEOC or in court
 Assisting with EEOC or court
proceeding (providing information or
testimony)
 Advising another employee re rights
 Narrow (covers few activities) but deep
(absolute) protection
4. Any Activities Protected Beyond
Filing Claim/Suit?

“Opposition” activities
 Protesting/complaining about discrimination
Refusing to carry out unlawful order
 Opposition to activity of co-worker
 Opposing discrimination outside workplace
 Broad (covers many activities) but shallow (less
absolute) protection


EMPLOYER ACTION

Alleged act of
discrimination

EMPLOYEE
RESPONSE
Participation
 Opposition

5. What Employer Actions
Amount to Retaliation?
 “Ultimate
actions” only
Position of several circuits
 Involves hiring, promoting, firing,
determining compensation
 “Employer-friendly” position

5. Employer Actions - Retaliation?
(cont)
 “Material
adverse change in
employment terms”
 Rule for most circuits
 May involve demotion, reprimand,
negative job evaluation or reference,
refusal to grant normal benefits or
office privileges, disadvantageous
transfer, harassment, countersuit
 More “employee friendly” position
5. Employer Actions – Retaliation?
(cont)
 EEOC
position: any action that may
deter employee from exercising rights
 Most “employee-friendly” position
 Few courts have adopted
 Some (few) types of unfavorable
treatment fall short of retaliation

EMPLOYER ACTION

Alleged act of
discrimination

EMPLOYEE
RESPONSE
Participation
 Opposition


EMPLOYER
RESPONSE

Adverse Action
 RETALIATION
6. Discrimination Claim Fails –
Status of Retaliation Claim?
 Judicial
view: retaliation claim may
still succeed - “right to be wrong”
 A not infrequent outcome
 Evidentiary and “human nature”
differences in two types of claims
7. What About the “Preemptive
Strike” Employee Strategy?
 Applies
only to “opposition” claims
 Strategy: Anticipating adverse action,
employee presses discrimination claim;
then cries “retaliation” when adverse
action administered by employer
 The legal reality:
Employee must have good faith belief that
discrimination occurred; and
 This belief must be objectively reasonable

8. Are There Limits on an
Employee’s Opposition Activities?
Illegal conduct not protected
 Lawful but “objectionable” actions
 Violation of policy
 Disruptive activities
 Communication with external parties
 Usually protected
 “Loyalty” argument by employer
 Judicial rule of “reasonableness” applied

9. Who Can Claim Protection
from Retaliation?
 The
victim
 A protesting employee who is not a
victim
 A protesting employee who is not in a
protected class
 A protesting employee who is related
to or associated with the victim
 A former employee
10. How to Avoid Liability?
 Have
clear anti-retaliation policy
 Inform and train work force about policy
 Follow a “zero tolerance” approach for
retaliatory actions
 Understand breadth of “protected
activities” and “adverse action” under
the law
10. How to Avoid Liability? (cont)
 Forward
all discrimination complaints to
HR for proper management and
monitoring
 Handle retaliation complaint as separate
grievance
 Endeavor to carry on “business as usual”
in dealing with complaining employee
10. How to Avoid Liability? (cont)

Follow common sense guidelines
 Check for unquestioned non-retaliatory
reason
 Be consistent with institutional and
departmental policy
 Be consistent with treatment of other
employees
 Be consistent with past treatment of
employee
 Scrutinize timing
10. How to Avoid Liability? (cont)
 Document
 Carefully
evaluate continuation of
internal grievance process after
external claim filed
 Always consult HR and legal
personnel

“You cannot get ahead while you are getting
even.” Dick Armey

“Mankind must evolve for all human
conflict a method which rejects revenge,
aggression, and retaliation. The foundation
of such a method is love.” Martin Luther
King