Building Defenses Against Threat of Retaliation Claims

August 29, 2011, 8:31 AM

This past fiscal year, more charges of illegal retaliation were filed with the Equal Employment Opportunity Commission (EEOC) than any other type of charge. This marked the first time in EEOC charge-handling history that race discrimination charges were not the most frequently filed claim. Also, given recent federal cases expanding retaliation rights, employees and their attorneys appear to have recognized that retaliation claims are more likely to be successful at trial than many standard discrimination claims.

With the current legal environment, employers are well-advised to make sure they have updated anti-retaliation policies in place. Such policies are often included in employee handbooks as part of policies outlining complaint procedures wherein employees are assured that they will not suffer any retaliation or discrimination for filing an internal complaint or for complaining to governmental authorities about some potential violation of the law. Other steps employers should consider include: providing training to supervisors who may not understand the scope of retaliation legal protection; maintaining confidentiality and otherwise conducting thorough investigations whenever an employee makes a protected complaint; and carefully considering the timing of any discipline of employees who have recently filed protected complaints. --David J. Sullivan