Preventing Employee Retaliation Claims

Author:Ms Katie Kiernan Marble
Profession:The McLane Law Firm

Published in NH Business Review Susan, the HR Director of Smith Corp., has just received a complaint of gender discrimination from Joann.; Susan has heard that retaliation complaints often accompany such complaints, and is concerned about preventing a retaliation claim. What can Susan do to prevent a retaliation claim against Smith Corp.?

In 2011, retaliation was the number one claim raised at the EEOC for the second year in a row, so employers should be concerned about taking proactive steps to minimize their risk of these claims. The reasons for the expansion of retaliation claims include that they are typically easier to prove than the underlying claim, retaliation claims can be successful even if the underlying claim is not proven, more employees have standing to bring these claims, and managers often do not fully understand retaliation.&

Retaliation occurs when an employee engages in protected activity, subsequently experiences an adverse employment action, and there is a direct relationship between the two. Often timing is the most critical factor in determining if retaliation did in fact occur. For example, if an employee raises concerns to a supervisor that workplace conditions are unsafe or unlawful and that employee is demoted within a short period of time, it will be very difficult for an employer to defend against a claim of retaliation due to the timing of the complaint and subsequent demotion.

Given the above definition of retaliation, it is critical for employers, as well as their managers, to understand what constitutes a "protected activity" as well as an "adverse employment action." Some instances of protected activity are clearly apparent to employers, including activities enforcing an employee's rights such as opposing unlawful conduct or making a complaint. However, protection from retaliation claims extends to individuals who participate in internal investigations, even if they did not raise the complaint. Employers should also know that oral complaints are sufficient to constitute protected activity.

The term "adverse employment action" has been defined very broadly by the United States Supreme Court to mean any conduct that could dissuade an employee from making or supporting a claim. Again, the term includes clearly apparent adverse actions, including termination and/or demotion, but can also encompass a wide variety of less obvious actions and behavior. Examples include being ostracized from meetings and being...

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