How to Combat EEOC Retaliation Claims

The Most Frequently Alleged EEOC Claim

By John Mavros Attorney at Law, Partner, Fisher & Phillips, LLP | December 24, 2017

Retaliation continues to be the most common claim brought against employers before governmental agencies and in the civil court system.  According to Equal Employment Opportunity Commission (EEOC), the agency that enforces Federal labor laws, the EEOC received 42,018 charges of retaliation in 2016.  That means that a retaliation claim was asserted in 45.9% of all charges submitted.  This is more than discrimination based on race and more than discrimination based on disability.  Even more concerning is the consistent uptick in retaliation charges, which have increased in number every year since 1997.  So, what can employers do to protect themselves against this ever-growing threat?

First, employers must understand what retaliation is.  Next, employers must educate themselves to recognize when a particular set of facts poses a high risk for a retaliation claim.  This article will attempt to do both.

Retaliation in a Nutshell

Retaliation is exactly what it sounds like: taking adverse action against an employee in direct response to something an employee did or refused to do.  Simple right?  However, liability for retaliation doesn’t usually arise in a straightforward manner.  Indeed, an employer doesn’t need to intentionally “retaliate” against an employee to face a retaliation claim. 

In summary, employers cannot fire, demote, harass, or otherwise retaliate against employees for engaging in “protected activity.”  Protected activity is a legal term of art, but generally includes taking a medical leave of absence, complaining about unlawful discrimination, or complaining about unlawful pay practices.  It also generally includes filing a wage/hour complaint or causes to be instituted any proceeding under the Fair Labor Standards Act.  Remember, the employee need not prove that a complaint turned out to be true, only that it was reasonable to think believe it was.  Similarly, an employee who refuses to engage in illegal activity is also protected under the law. 

 The potential for retaliation arises when an employer takes “adverse” action against an employee after he/she engages in activity that is legally “protected.”  “Adverse” action can include any action detrimental to the employee’s terms and conditions of employment.  A common misconception is that “adverse” action is solely limited to termination.  For example, pay reductions, demotions, or transfers are all potentially adverse actions. 

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