Avoiding Liability for Retaliation Claims
Issue Spotting in Real Time
By Lonnie Giamela Partner, Fisher & Phillips, LLP | December 21, 2014
John A. Mavros, Attorney at Law, an associate in the Irvine office co-authored this article
Retaliation lawsuits are the most common claims brought against employers before governmental agencies and are increasing in frequency in the civil court system. According to the Equal Employment Opportunity Commission (EEOC), in 2013, a retaliation claim was made in 41.1% of all charges submitted to the EEOC. This is more than discrimination based on race and more than discrimination based on disability. Even more concerning is the consistent uptick in retaliation allegations. Retaliation claims have increased in number every year since 1997. So, what can employers do to protect themselves against this ever-growing liability?
First, employers must understand what retaliation is. Next, employers must be able to issue spot 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
At bottom, retaliation is exactly what it sounds like: taking adverse action against an employee in direct response to something an employee did or didn't do. Simple right? Indeed, why would an employer ever consciously "retaliate" against an employee? While it may seem simple to avoid, liability for retaliation doesn't usually arise in a straightforward or intentional manner.
As a brief overview, employers cannot fire, demote, harass, or otherwise "retaliate" against people (applicants or employees) because they filed a charge of discrimination, because they complained to their employer or other covered entity about discrimination on the job, or because they participated in an employment discrimination proceeding (such as an investigation or lawsuit). It is also a violation for an employer to discharge, or in any other manner discriminate against, an employee because that employee filed a wage/hour complaint or caused to be instituted any proceeding under the Fair Labor Standards Act.
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