In recent years, “retaliation” has become one of the most frequently alleged bases of employment discrimination, and is now the most common discrimination finding by the Equal Employment Opportunity Commission in federal cases.  Generally stated, “retaliation” occurs when an employer takes adverse action against an employee because he or she engaged in a protected activity.  The operative terms of significance in determining if a retaliation event has occurred are “adverse action” and “protected activity.”

An “adverse action” includes any action taken by an employer to prevent or discourage an employee from opposing a discriminatory practice or from participating in an employment discrimination proceeding.  Examples of adverse action include employment actions such as termination, refusal to hire, and denial of promotion and other actions affecting employment such as threats, unjustified negative evaluations, unjustified negative references, or increased surveillance.  For example, if an employee tells her supervisor that another employee is harassing her based on her sex or race and, within a short time after making the complaint, the supervisor disciplines or gives the employee a negative performance review, there is potentially a strong inference that the employee was retaliated against for reporting the alleged harassment.

A “protected activity” is broadly interpreted to mean any opposition or participation in any opposition by an employee to a practice believed to be unlawful discrimination under applicable federal or state law.  Examples of protected activity include complaining to anyone (not just a supervisor or superior) about alleged discrimination against oneself or others, threatening to file a charge of discrimination, and refusing to obey an order reasonably believed to be discriminatory.

Even though retaliation claims arise out of or are based upon one or more underlying claims of discrimination, discrimination claims and retaliation claims are treated as two separate and distinct claims, and even if an employer prevails on the underlying discrimination claim, the employer can still lose on the retaliation claim.  

The time and expense incurred by employers to defend, and the consequences to employers arising out of an adverse ruling in retaliation actions, are such that employers should implement policies and take all reasonable precautions to avoid retaliation claims by employees.

Due to the complexities of federal and state employment retaliation laws, it is important to talk with an experienced employment law attorney when faced with employee retaliation claims.