Retaliation Revisited

By Lawrence F. Feheley

Not infrequently, employers win the battle by successfully defending employee claims like harassment and discrimination, only to lose the war when the employee later files a claim of retaliation. Generally speaking, it is illegal to retaliate against an employee who files an employment or discrimination claim, and any subsequent action taken against the employee is always under the microscope. Retaliation claims now comprise thirty percent of the charges filed with the EEOC.

On June 22 the U.S. Supreme Court issued an important decision on retaliation. The question before the Court was how bad adverse treatment has to be in order to constitute "retaliation." Prior to this decision, a number of federal courts had ruled that the employee had to be subjected to a significantly adverse employment action, such as a discharge, demotion, cut in pay, transfer to an undesirable job, etc. The Supreme Court rejected this high standard and ruled:

1. Retaliation consists of any actions that would dissuade or deter a "reasonable person" from filing or pursuing a claim; and

2. Retaliatory acts are not confined to the workplace, and can include harm that occurs outside work (like a bad job reference).

The Supreme Court's decision will allow more retaliation claims, and will affect retaliation claims under federal and state discrimination laws, as well as a host of other retaliation prohibitions (such as workers' compensation, whistleblowers, etc.)

If you haven't talked with your supervisors about avoiding retaliatory acts against perceived "troublemakers," now would be a good time to do it. Also, it is now more important that supervisors should be cautioned not to take any adverse action against the employee unless it is reviewed beforehand, well-documented, and consistent with acts taken in other similar circumstances.