By Joan S. Farrell, J.D., BLR Legal Editor
Laws prohibiting retaliation as a form of workplace discrimination have expanded rapidly in the past few years. New state and local fair employment laws have been enacted with provisions prohibiting retaliation, and decisions by courts and regulatory agencies have broadened the scope of coverage for existing laws.

Federal laws like Title VII of the Civil Rights Act, the Fair Labor Standards Act, and the Family and Medical Leave Act prohibit retaliation by employers when an employee complains of workplace discrimination or otherwise engages in “protected activity” like being a witness in an investigation, or filing a workplace discrimination charge with the EEOC. Many other statutes, both state and federal (e.g., whistleblower statutes, state workers’ compensation statutes, laws governing jury service) contain retaliatory prohibitions as well.

And under a decision by the U.S. Supreme Court, an employer can’t take adverse action against an employee based on a close relationship with an employee who’s engaged in protected activity. Based on another Court decision, the U.S. Department of Labor has issued a fact sheet stating that protected activity under the Fair Labor Standards Act includes both oral and written complaints, including those made to an employer.

Not surprisingly, the number of retaliation claims filed with the EEOC has been climbing steadily for years; and now retaliation claims are the most frequently filed type of workplace discrimination claim. In a recent press release, the EEOC reported that charges alleging retaliation were the most numerous at 37,334 charges received, or 37.4 percent of all charges.

What’ s particularly frustrating for employers is that a retaliation claim can survive even when the underlying complaint of workplace discrimination is dismissed. That’s because the legal standards for proving retaliation are different from the standards for proving discrimination in employment. An individual can establish a retaliation claim by showing that:

1. he or she engaged in a protected activity;
2. he or she suffered an adverse employment action; and
3. there was a causal connection between the protected activity and the adverse employment action

And while timing isn’t everything, it can be used as evidence. When an employer takes an adverse employment action against an employee shortly after the employee has engaged in protected activity, the short time span can support a claim of retaliation. Conversely, a longer span typically weakens the employee’s argument that the adverse action was taken in response to protected activity.

So, what can employers do to avoid retaliation claims?

• Have a written policy prohibiting retaliation and provide training to supervisors and managers about what retaliation consists of and how to avoid it. (Basically, retaliation is any action that would dissuade a reasonable worker from engaging in protected activity).
• Don’t fire employees when you’re fired up. Managers and supervisors need to understand that anger should not dictate employment decisions. Managers should do whatever it takes to cool down and stay cool. Part of their job is to act responsibly and professionally, even in the face of false accusations.
• Provide training and refreshers so supervisors know how to react when they receive a complaint from an employee. A supervisor typically is the first person to receive harassment complaints from employees and his/her response is critical in resolving and defending workplace discrimination claims.
• Apply policies and practices consistently. Selective enforcement of policies can support a claim of discrimination and retaliation, especially if enforcement is stepped up right after an employee files a complaint. If an employer departs from its usual policy or practice, the legitimate, nondiscriminatory reasons for the exception should be documented.
• Publish your complaint reporting procedures. Post them conspicuously and encourage employees to report any retaliation using the same complaint procedure.

Retaliation Resources

• Policy Against Discrimination, Harassment, and Retaliation
• Civil Rights/Employment Discrimination
• Supreme Court decision on third-party retaliation
• Verbal Complaints Covered Under FLSA, Says WHD
• Termination
• Discharge Checklist

Joan S. Farrell, J.D., is a Legal Editor for BLR’s human resources and employment law publications. Ms. Farrell has over 10 years’ combined experience in employment law and human resources management. As an in-house attorney for Citizens Communications Company, Ms. Farrell provided counseling on employment practices and represented the company in labor and employment matters. She later worked as a manager of Citizens’ Human Resources and Employment Law group. Ms. Farrell also represented management in employment law matters as an attorney with the national law firm of Brown Raysman Millstein Felder & Steiner LLP. Her experience includes representing management in administrative matters, discrimination and wrongful termination claims, as well as wage and hour disputes. Ms. Farrell received her law degree from Pace University School of Law.