Many federal employment laws not only proscribe discriminatory or otherwise unfair treatment of employees, but also specifically bar managerial retaliation against workers who accuse their employers of violating such a law. Title VII of the Civil Rights Act, the Age Discrimination in Employment Act the Americans with Disabilities Act, and the Fair Labor Standards Act (which now includes the Equal Pay Act) are all examples of statutes that prohibit retaliation.

An employee can establish a prima facie, or potential, retaliation claim by showing that:

1. he or she was engaged in a protected activity;
2. he or she suffered an adverse employment action; and
3. the activity and the adverse step appear to have a cause-and-effect relationship.

What's a 'protected activity'?

Germanis explained that two broad kinds of steps can qualify as protected - participation or opposition. In the first kind, an employee plays a role in a hearing or investigation of employer misconduct. For example, he or she might provide evidence or testimony as a witness.

Under most of the laws listed earlier, the prohibition against retaliation is very broad, extending even to employees who testify in bad faith or don't tell the truth. The other, and usually narrower, category of protected activity is directly opposing an employer act or practice that the opposer feels is biased or otherwise illegal. Here, the employee must be found to have an "objectively reasonable belief" that the practice was wrong. In addition, the employee must oppose the practice in a reasonable fashion, rather than engaging in disruptive conduct such as walking off the job or slapping a co-worker.

And what's an 'adverse employment action'?

Although employers should avoid any adverse action against an individual who engages in protected activity, the courts have not allowed employees to complain about every trivial annoyance arising in the workplace, distinguishing between "adverse employment actions" and less important minor acts.

As you might imagine, firing or demoting someone is nearly always seen as adverse, as is reducing the employee's salary, unless there is an objective corporate reason for it. Based on a variety of recent cases, however, a few events that courts have generally not seen significant enough to qualify include:

• Poor performance evaluations
• Negative comments or criticisms (unless they add up to threats of termination)
• Hostility and snubbing, especially from co-workers at the same or lower levels as the employee in question
• Lateral transfers or shift changes
• Disciplinary steps that consistently apply to all employees for the same infractions

While these acts, taken by themselves, will not support a retaliation claim, a series of such minor acts can create a viable claim and may inhibit an employer's ability to take warranted disciplinary action.

What about timing?

A very common problem in retaliation claims is that a step taken by the employer may occur so close in time to the subject employee's protected activity that it appears to be retaliatory, even if it had been planned months beforehand. Employers who take a negative step toward an employee within hours or days of the individual's protected participation or opposition have a tough time convincing judges and juries that the step had nothing to do with the activity.

But how close in time must the step be? A recent case reviewed by the U.S. Supreme Court, Clark County School District v. Breeden, provides a fresh guideline. Plaintiff Breeden filed an EEOC charge about a comment that she believed was sexual harassment by her supervisor and was subsequently transferred to what she claimed was a less desirable position. Relying on the 20-month period between Breeden's charge and the transfer, the Court ruled that such a length of time failed to show causality between the two events. Before this ruling, courts had generally decided that two-year delays were too long to indicate retaliation.

Ten Tips

Germanis offered attendees a list of ten tips designed to reduce employers' risk of retaliation complaints:

1. Create and distribute a company policy against discrimination and harassment that includes a strong retaliation provision. Consider including a clause noting that if an employee files a complaint maliciously or with the knowledge that it is false, he or she is subject to disciplinary measures up to and including termination. This clause also puts employees on notice that they cannot avoid discipline for poor work or policy infractions simply by filing frivolous claims.
2. Train all managers and supervisors about the general purpose and the specifics of your no-retaliation policy, illustrating the kinds of behavior that can be seen as retaliatory. Stress that the company could be liable if a supervisor were found to have retaliated against a subordinate, even if the original complaint (of discrimination, for example) was unfounded.
3. Inform all managers that whenever they receive a complaint, they should respond quickly with two steps: Reassure the complainant that the company will not tolerate retaliatory behavior, and inform the person accused that a complaint has been lodged, that the company's policy prohibits retaliation, and that his or her behavior will be carefully monitored in the future.
4. These same two steps should be repeated at the conclusion of the company's investigation of the complaint. At that point, the complainant should be reminded to report any instances of retaliatory behavior, and the accused should be reminded of his or her obligation to avoid any conduct that might be considered retaliatory.
5. Specify that every complaint of retaliation must be forwarded to human resources for that staff's involvement. This step can help alleviate the problem that the person accused, who is often the complainant's supervisor, will find it difficult to be objective about either the complainant or any potential employment action. Once HR has been notified, the accused supervisor should be asked to submit any significant personnel actions he or she contemplates with regard to the complainant to HR for review before acting.
6. Always conduct as thorough an investigation as possible of a retaliation complaint. You want to show that the company takes this complaint just as seriously as the original act, such as a discrimination charge, that allegedly gave rise to retaliation.
7. Because the filing of a complaint does not absolve an employee of responsibility for misconduct, it is not improper for an employer to document employee misconduct or poor performance. Do not build a file because an employee has filed a complaint, but do not avoid normal documentation simply because a complaint has been made.
8. Keep all retaliation complaints as confidential as possible, within the confines of necessary investigatory activities -- the fewer individuals with knowledge of the protected conduct, the fewer individuals with the requisite knowledge to retaliate.
9. When and if the company is asked for references on former employees, strictly limit responses to the "name, rank, and serial number" of those individuals. This is a key precaution in reducing your vulnerability to charges of retaliation.
10. If an employee is involved in a lawsuit against the company, notify the complainant and his or her attorney that the company expects the individual to behave in a professional and business-oriented manner in the workplace at all times. That is, he or she should not be talking to co-workers about the suit or responding to work requests with resentment.