Retaliation Nation: How to Manage It

Why do most claims against employers tack on retaliation? Cuz that is where the money is! Over the years, courts have even dismissed the underlying claim–say discrimination based on gender–but upheld retaliatory acts by the employer. Ka-ching. Retaliation claims strike fear in the hearts of many employers, but proving retaliation is not a slam dunk. Let’s break it down.

To succeed on a retaliation claim, a plaintiff must:

  1. Engage in protected activity (like an internal complaint of discrimination or participate in a state or EEOC proceeding);
  2. Suffer a materially adverse employment action; and
  3. Show a relationship between 1 and 2.

Oftentimes, we will get a call that an employee who has an active discrimination claim needs to be disciplined. The employer assumes they cannot do that and still avoid a retaliation claim. First, good on them for making the call to us! Next, what is the discipline the employer wants to impost (2)? A written reprimand does not rise to the level of material employment action because there is not material change in pay, schedule, location or duties. It is not materially adverse. But let’s say the employer wants to impose a more serious action. Now we look at whether there is a relationship between the protected activity and the employment action (3).

Next question–and you knew it was coming–any documentation of prior warnings or discipline?  If the employee has had a history of certain behavior and has been disciplined, it is easier to defend the discipline–that is, no connection back to the protected activity. Also, it the employee engages in egregious behavior, the protected activity alone is not a defense.

Bottom line: you should be aware of the potential for a retaliation claim but you are not completely unable to act.

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