Workplace Discrimination Includes “Retaliation” – 5 Ways to Recognize & Avoid It

“More and more employers are recognizing what employment attorneys have long known. The most prevalent type of employment discrimination claim is not one based on race, sex, religion, disability or age. Rather, it is one alleging unlawful retaliation. In fact, in 2010, for the first time ever, retaliation claims surpassed race discrimination claims to become the most common type of claim filed with the Equal Employment Opportunity Commission. This trend is not expected to end anytime soon.” (Department of Labor Issues New Fact Sheets on Retaliation by McNees Wallace & Nurick LLC)

Most business owners and HR managers already know that it’s against the law to retaliate against the squeaky wheel. That’s the easy part. The hard part is determining just who qualifies as a squeaky wheel in the first place. For your reference, here are five activities considered to be retaliation that you will want to avoid:

1. Disciplining an employee for filing a complaint: 

“Several years ago, the U.S. Supreme Court ruled that the anti-retaliation provisions of Title VII are not limited to actions that impact terms and conditions of employment. Rather, they prohibit any employer action that might dissuade a reasonable worker from making or supporting a claim of discrimination.” (Retaliation Claims Take Center Stage by Wooden & McLaughlin LLP)

2. Dismissing an employee for making an oral complaint about workplace conditions:

“The United States Supreme Court recently ruled that the anti retaliation provision of the Fair Labor Standards Act extends to an employee’s oral complaints… In Kasten v. Saint-Gobain Performance Plastics Corp., the Court held that the term ‘any complaint’ includes oral and written complaints. The decision in Kasten continues a recent trend of rulings that have expanded employment-related anti-retaliation laws.”  (Oral Complaints Can Provide Basis For FLSA Retaliation Claim by Nexsen Pruet, PLLC)

3. Discriminating against an employee for participating in an internal investigation:

“… the U.S. Supreme Court has expanded the definition of ‘retaliation’ under Title VII of the Civil Rights Act of 1964 to include employees who do not complain of harassment themselves, but who participate in an internal investigation and report harassing behavior directed at themselves or others.” (U.S. Supreme Court Broadens Definition of Retaliation by Edwards Angell Palmer & Dodge LLP)

4. Penalizing an employee for supporting another employee’s complaint:

“Employers should be mindful that taking actions against an employee who has … supported the harassment claim of another employee may lead to a separate claim for retaliation, even in situations where the underlying harassment claim is not valid.” (Hostile Work Environment Refresher: What Employers Should (Still) Be Thinking About by Akerman Senterfitt)

5. Punishing an employee who is in a relationship with one who has filed a complaint:

“… the U.S. Supreme Court issued a unanimous decision dramatically expanding the reach of Title VII’s anti-retaliation provision. In this decision, the court held that an employee who claimed he was terminated because his fiancé filed a discrimination claim against their common employer may pursue a retaliation claim under Title VII.” (Employment Law Alert – February 2011 by Ruskin Moscou Faltischek)

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