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Overview on Retaliation

November 2, 2021

In the past 20 years retaliation claims have increased by 100%. With this increase, retaliation has become the highest percentage of claims with the EEOC, swiftly surpassing the previously highest categories of race discrimination and sex discrimination. According to the EEOC’s Fiscal Year 2020 data, there were 37,632 retaliation claims, accounting for 55.8% of all claims filed. The retaliation category has been the alleged basis in more than half of all claims since 2018 and continues to grow. This article will discuss the basic principles of retaliation and recent developments in the area.

How Retaliation Claims are Proved

There are three steps to establishing a retaliation claim:

  • the employee must take part in a protected activity;
  • the employer must take action against the employee; and
  • the employer must have retaliated against the employee because of the engagement in the protected activity.

Not only are retaliation claims made at a higher rate than discrimination claims, but they are also significantly easier to prove, making them more likely to result in litigation.

What is Retaliation?

There are both state and federal Equal Employment Opportunity (EEO) laws that prohibit discrimination, harassment, and retaliation in the workplace. Under EEO laws, employers cannot retaliate against individuals that:

  • file an EEO claim or lawsuit;
  • report discrimination or harassment to a supervisor;
  • act as a witness in an EEO claim or lawsuit;
  • participate in an investigation of a discrimination or harassment claim;
  • refuse to carry out acts that may be qualified as discrimination;
  • resist sexual advances;
  • interfere with sexual advances in order to protect another;
  • request a religious or disability accommodation; or
  • inquire about wages in order to uncover discriminatory pay differences.

Some examples of retaliation include:

  • reprimanding an employee;
  • giving an undeserving negative performance review;
  • demoting or transferring an employee to another position;
  • gossip or spread rumors about the employee;
  • take negative actions against a loved one or spouse that is also employed with the organization; or
  • purposefully changing the employee’s responsibilities or work hours.

However, an employee that engages in protected activity is not automatically protected from all adverse actions. Employers can still discipline or terminate workers that have engaged in protected activities if the reasons for the discipline or termination are non-retaliatory and non-discriminatory.

False Claims for Retaliation Protection

A growing concern in the area of retaliation is the filing of false claims in order to obtain retaliation protection. In some cases, employees that have recently been disciplined or have participated in conflict may fear that they will soon be terminated or have a claim filed against them. In order to avoid these situations, an employee may file their own complaint, affording themselves protection from retaliation. Therefore, if an employee is subsequently terminated, they will have the ability to claim that the employer’s action was retaliatory.

These false claims result in a time-consuming investigation and occasionally costly litigation. If an employee files a complaint that may lack merit, the employer should be careful to investigate it as they would with any other complaint and make clear what the determination was at the conclusion of the investigation. In addition, if an employee files a complaint because they have been disciplined and are using retaliation to protect themselves, the employer must be prudent in evaluating the claim so that it gets the same review a typical complaint would. Employers must cautiously navigate these situations in order to avoid future conflicts.

Changes to Retaliation in New York

On October 28, New York Governor Kathy Hochul signed into law new provisions that will afford private sector workers more protections from retaliation as a result of reporting illegal work practices. The new provisions change the law by expanding protection to former employees that could face retaliation post-termination.

For example, the law now includes actions or threats that may affect a former employee at their new employment or affect their ability to obtain a new job. Another measure prohibits employers from actually contacting or threatening to contact immigration authorities to report undocumented former employees. Independent contractors are also covered under these expansions.

Conclusion

Retaliation claims continue to rise across the country. With New York State expanding the protections to former employees and independent contractors, it is likely that these numbers will rise at an even faster rate.

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