An employee's claim of retaliation in the workplace used to be considered a “throw in” claim for relief in a complaint that was otherwise mired in underlying claims of discrimination or harassment. Not anymore. Today, retaliation claims often stand front and center on the litigation stage, and are, in fact, more difficult for companies to navigate through.  

Anti-retaliation provisions are ubiquitous in the primary employment statutes. A typical provision is the one contained in the Age Discrimination in Employment Act, which generally prohibits discrimination on the basis of age, and the corresponding anti-retaliation provision makes it further unlawful to retaliate against an employee who has opposed age discrimination, made an age discrimination complaint, or “testified, assisted, or participated” in an age discrimination investigation or action. Similar anti-retaliation proscriptions can be found in Title VII of the Civil Rights Act, the Fair Labor Standards Act and the Family and Medical Leave Act, as well as various other state and local laws. In view of the high stakes involved with these types of claims, it is critical for employers to understand the nature and unique issues attendant to retaliation claims, and the best practices for minimizing the likelihood that employers will be on the wrong end of those claims.

Take, for example, the latest statistics published by the Equal Employment Opportunity Commission (EEOC), which illuminate the meteoric rise in the number of retaliation charges that plaintiffs have filed with the federal agency. In 2011, for the first time, the number of retaliation charges filed with the EEOC exceeded the number of charges filed for discrimination based on disability, religion, race, sex and age. Looking solely at retaliation itself, the number of EEOC charges filed on that basis grew steadily from 18,198 charges in 1997 to 37,334 in 2011, and the monetary benefits the EEOC recovered for individuals claiming retaliation blew past the $100 million mark for the first time in 2011 ($147 million) compared with $41.7 million and $88.8 million in 1997 and 2005, respectively.

There has been a noticeable difference in the courts' treatment of these claims as well, with retaliation claims getting their own, particularized treatment. This is evidenced by numerous recent decisions in which courts have been willing to grant summary judgment on an underlying claim of discrimination but deny summary judgment on a retaliation claim in the same case.

How can we explain this sudden rise and prevalence in retaliation claims? Today's workforce is much smarter and is armed with more knowledge. The Internet and social media also provide greater access to information about employee rights in the workplace. In addition, retaliation claims may be easier to prove than underlying discrimination and harassment claims, which effectively require a showing of an employer's intent to discriminate or some pattern of discrimination against a protected class. Retaliation claims, in contrast, can be based primarily on objective benchmarks whittled down to a mere chronology in many cases.

So how can employers effectively deal with today's realities when it comes to retaliation claims? It often comes down to the appropriate mindset. For example, most companies perform regular harassment and discrimination training internally but do not sufficiently include the retaliation principles discussed above. The company's management and supervisors should be trained on what retaliation is, why it is becoming so prevalent in today's workplace, what visible signs to look out for and the consequences for not complying with anti-retaliation obligations. The company's mindset must also include an understanding of the full scope of retaliation-based obligations and all forms of complaints in their investigation checklist, whether such complaints are oral, internal or made through electronic or social media means.

Finally, employers need to create sufficient written policies that include specific anti-retaliation verbiage, and they must publish and implement those policies in a fair and consistent manner. In addition, employers should heed the usual admonition to “document, document, document.” There is likely no other area of employment law better served by proper internal documentation than the defense of retaliation claims, where an appropriately documented chronology of a company's adverse decision relative to an employee's complaint can often make or break these claims.