Our Blog Archive for March 12, 2010

Retaliation is now the most commonly filed claim with the Equal Employment Opportunity Commission (EEOC). In general, retaliation claims are likely to be successful in trial and recover significant damages. Since most managers have no idea what retaliation is and how they can significantly contribute to retaliation claims, these new statistics have employers on edge.

Employees can file a charge of retaliation if they feel they suffered adverse action (demotion, poor job assignments, the “cold shoulder” etc.) because they filed a discrimination complaint with their employer, or because they participated in a protected activity, such as a discrimination investigation. The original claim doesn’t have to be successful, as long as it was made in good faith. That means that if someone files a discrimination claim and it was found that discrimination did not in fact occur, the employee can still win a retaliation claim if they feel adverse action was taken against them because of their original claim.

Managers rarely understand the “stand alone” nature of these retaliation claims, and are shocked to learn that an unsuccessful discrimination complaint can still support a successful retaliation claim. Particularly when managers feel that discrimination claims are not valid, they can engage in high risk behaviors (like expressing anger over the claims) that create serious legal liability for their employers.

Retaliation claims are frequently brought along with discrimination claims, which means that the record number of discrimination claims reported by the EEOC the past two years feeds the unprecedented rise in retaliation claims as well. As a result, it is vital that employers are equipped with policies and training that educate management about how to reduce risk of retaliation claims and how to make these claims easier to defend.