January 23, 2006

With increasing frequency, employers are facing claims of retaliation. According to the Equal Employment Opportunity Commission (EEOC), the number of retaliation claims filed with that agency has doubled over a 10-year period, and now represent more than a quarter of all claims filed. Lawsuits alleging retaliation are also on the rise.

In order to prevail on a claim of retaliation, the employee must prove three things: (1) he or she engaged in protected activity; (2) he or she suffered an adverse employment action; and (3) the employer took the adverse employment action because the employee engaged in the protected activity.

What is protected activity? Protected activity covers a wide spectrum of conduct. Generally, this involves taking some action that is permitted by statute. The most common retaliation claims arise in situations where an employee has:

• initiated an internal complaint of harassment
• filed a claim of discrimination with the EEOC
• requested an accommodation for a disability
• filed a worker’s compensation claim following a work-related injury
• engaged in union organizing activity
• requested a pregnancy leave of absence
• requested leave under the Family and Medical Leave Act
• filed a safety related complaint with the Occupational Safety and Health Administration
• filed a “whistleblower’s” claim alleging that the employer engaged in illegal conduct

What is an adverse employment action? The most common, and serious, form of adverse action is termination. An employee does not have to be terminated, however, in order to bring a successful retaliation claim. Adverse action also includes a demotion, a denial of a promotion, discipline, or any other action by an employer that had a negative impact on an employee’s compensation or terms and conditions of employment.

What must an employee prove to establish a retaliation claim? Generally, the first two elements of a retaliation claim are not in dispute. The critical issue is whether the adverse action was taken because the employee engaged in protected activity. It is not enough for an employee to merely prove that he or she suffered an adverse action subsequent to having engaged in protected activity. Rather, the employee must prove that there was a link between the protected activity and the adverse action. In essence, the employee must prove that the protected activity was a factor in the employer’s decision to take the adverse action. The employee does not, however, have to be successful in the underlying claim to succeed on the retaliation claim.

Claims of retaliation are seldom proven through direct evidence (statements by the employer linking the adverse action to the protected activity). Rather, retaliation claims are usually established through circumstantial evidence. In this regard, the timing of the protected activity with respect to the adverse action is important. The more closely the two are connected in time, the greater the inference that the two are related. Further, the concept of “disparate treatment” is important in the analysis. When the adverse action involves discipline or termination, one consideration is whether the claimant was treated more harshly than other employees who engaged in the same or similar misconduct, but who did not engage in the protected activity.

What is an employer’s exposure? Employees terminated in retaliation for engaging in protected activity would be entitled to back pay and future wage loss, compensation for lost benefits, attorney fees and, depending on the circumstances, emotional distress damages.

What are an employer’s best practices to avoid claims of retaliation? An employer can take a number of steps to prevent claims of retaliation. First, publicize, consistently put into practice, and enforce a clear policy against retaliation. For example, anti-harassment, equal employment opportunity and complaint policies should state that the company prohibits retaliation against employees who complain about discrimination or other protected activity. Second, make sure there is a legitimate, non-discriminatory reason for all employment decisions. Any employee misconduct or examples of poor work performance should be documented. Such records become critical when an employer is required to justify its actions in court. Third, require that a high level employer representative review any recommended discipline or other adverse employment decision involving an employee who has engaged in protected activity to ensure that the employee’s supervisor did not unfairly target the employee. Fourth, with respect to decisions involving discipline, ensure that employees who have engaged in protected activities are treated the same as employees who have not when circumstances (such as severity of conduct, past offenses, length of employment, etc.) are similar.

Article submitted by Mel Muskovitz, a member of the Employment and Labor Section in the Ann Arbor office of Dykema Gossett PLLC. Other articles written by Mr. Muskovitz can be viewed at www.dykema.com. Mr. Muskovitz can be reached at (734) 214-7633 or via e-mail at [email protected].