Spencer Fane LLP Logo

Retaliation: Before, After, and During Employment

Retaliation occurs where an employer punishes an employee, job applicant or former employee for engaging in a “protected activity.” A protected activity includes filing a charge of discrimination with the EEOC, filing a worker’s compensation claim, participating in a discrimination proceeding, or otherwise opposing discrimination. The same laws that make it illegal for an employer to discriminate against an individual on the basis of his or her race, color, sex, religion, national origin, age and disability also explicitly include anti-retaliation provisions. If an employee files a charge of discrimination with the EEOC and the employer in some manner punishes the individual for filing the charge of discrimination, the employer could be held liable for retaliation. This is true even if the EEOC finds the underlying charge of discrimination has no merit.

Retaliation is often easier to prove than general discrimination. The question courts use to determine whether retaliation occurred is: Would the action taken here discourage a reasonable employee from engaging in protected conduct? Examples of retaliatory conduct include: changing the schedule of an employee from a day shift to a less desirable night shift; overlooking an employee for overtime opportunities; or a supervisor refusing to invite an employee to lunch where the lunch is used for training or otherwise needed for advancement.

Almost a quarter of the charges filed with the EEOC include a claim of retaliation. As of 2008, approximately 57 percent of retaliation cases were successful – the highest percentage among discrimination cases.

Employers should take note that a claim of retaliation may be brought by job applicants. For example, an applicant may bring a claim of retaliation if a company refused to hire her because she filed a charge of discrimination against her former employer. This obviously does not mean employers must hire every applicant who it discovers has previously engaged in protected conduct. Rather, it simply means employers should not take such information in to account when making hiring decisions. A practical tip is for those interviewing job applicants not to ask questions that might elicit such information or conduct internet searches that might also provide evidence of past charges against employers.

Retaliation claims asserted by former employees are also on the rise. One situation where this type of claim may occur is where an employer gives a former employee a negative reference. A negative reference is considered conduct designed to interfere with the individual’s prospects for employment, and has been deemed to be retaliatory conduct to the extent the information provided is false. Note: Employers may have immunity from civil liability for defamation under state law for disclosing information about a current or former employee’s job performance to a prospective employer, unless the employer knowingly gave false information, was deliberately misleading, or gave information with a malicious purpose. It may also be considered retaliatory for an employer to oppose a former employee’s claim for unemployment benefits – if that opposition is deemed meritless. Numerous courts have also ruled that the filing of a lawsuit or a counterclaim motivated by retaliation against a former employee can serve as a basis for a retaliation claim.

A claim of retaliation is possible in a variety of contexts – before, during and after employment. Employers should be aware that these claims exist and be careful when taking action – especially when it has knowledge the individual at issue has engaged in protected activity.