Overview: When used in an employment context, the term retaliation refers to taking a vengeful, adverse action against an individual. Advanced levels of employee discipline, such as suspension and termination, may trigger retaliation claims. Employers should provide training to supervisors and managers to determine how to guard against employee retaliation, and how to minimize employer liability with respect to agency charges or court claims.
A number of federal and state laws and regulations contain antiretaliation provisions, which are among the most heavily mediated and litigated employee protections. In fact, the Equal Employment Opportunity Commission (EEOC) receives tens of thousands of retaliation-based complaints each year. Other major federal employment laws containing antiretaliation provisions include the Fair Labor Standards Act (FLSA), the Employee Retirement Income Security Act (ERISA) and the Family and Medical Leave Act (FMLA).
The Sarbanes-Oxley Act of 2002 (SOX), as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank), includes penalties for retaliating against whistleblowers. These whistleblower provisions, along with many other statutory provisions, are enforced by the Occupational Safety and Health Administration's Office of the Whistleblower.
Trends: The Supreme Court has adopted a strict standard of proof for retaliation claims under Title VII of the Civil Rights Act of 1964. In University of Texas Southwestern Medical Center v. Naiel Nassar, MD, the Court adopted a standard that requires employees to show that "but for" the employer's improper motive, the adverse employment action would not have been taken. This contrasts with the "mixed motive" standard of proof, where an employee must show that the employer's improper motive was a "motivating factor," but not the primary factor, in the decision. In addition, the EEOC has proposed draft enforcement guidance that would strengthen the EEOC's ability to enforce retaliation protections and that would bring its guidance in line with recent Supreme Court cases.
Author: Marta Moakley, JD, Legal Editor
Updated policy and guidance to reflect the Defend Trade Secrets Act, effective May 11, 2016. See Defend Trade Secrets Act.
Updated to reflect amendment to equal pay law expanding coverage to all employers that employ two or more employees, effective July 20, 2016.
Updated to reflect discipline concerns under the Workplace Privacy Act, effective July 20, 2016.
Updated to include amendments expanding discrimination protections regarding employee wage discussions, effective June 30, 2016, and forthcoming protections regarding reproductive health decisions and family responsibilities.
Updated to include information on a state court ruling allowing for damages in a retaliation claim under the Minnesota Fair Labor Standards Act, and forthcoming Minneapolis sick and safe time protections.
The US Department of Justice has published an interim final rule adjusting current civil monetary penalties, which takes effect on August 1, 2016.
Updated to include amendments to the Fraud and Abuse Whistle Blower Protection Act, effective July 1, 2016.
Updated to reflect amendments to the state military leave law, effective July 1, 2016.
Updated to reflect amendments under the Protecting Guardsmen's Employment Act, effective July 1, 2016.
HR guidance on the legal risks of retaliation in the workplace.