HR Support on Retaliation in the Workplace

Editor's Note: Enforce conduct rules to ensure a workplace free of retaliation.

Marta MoakleyOverview: 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. Although this employer-friendly, strict standard of proof is applicable in Title VII retaliation cases, many courts continue to apply employee-friendly, relaxed standards of proof in whistleblower retaliation cases.

Author: Marta Moakley, JD, Legal Editor

Latest items in Retaliation

  • OSHA Issues Largest Punitive Award in a Federal Railroad Safety Act Retaliation Claim

    Date:
    22 January 2015
    Type:
    News

    The Occupational Safety and Health Administration (OSHA), which enforces over 20 different whistleblower statutes, has issued the largest ever punitive damages award in a retaliation claim under the Federal Railroad Safety Act (FRSA).

  • Employee Discipline: Illinois

    Type:
    Employment Law Manual

    In-depth review of the spectrum of Illinois employment law requirements HR must follow with respect to employee discipline.

  • Whistleblower Protections Handbook Statement: New Hampshire

    Type:
    Employee Handbooks

    New Hampshire employers seeking to encourage and demonstrate compliance with the New Hampshire Whistleblowers' Protection Act (NHWPA or the Act) should consider including this model policy statement in their handbook.

  • Involuntary Terminations: California

    Type:
    Employment Law Manual

    In-depth review of the spectrum of California employment law requirements HR must follow with respect to involuntary terminations.

  • Employee Discipline: New Jersey

    Type:
    Employment Law Manual

    In-depth review of the spectrum of New Jersey employment law requirements HR must follow with respect to Employee Discipline

  • Employee Discipline: New Hampshire

    Type:
    Employment Law Manual

    In-depth review of the spectrum of New Hampshire employment law requirements HR must follow with respect to employee discipline.

  • Employee Discipline: Tennessee

    Type:
    Employment Law Manual

    In-depth review of the spectrum of Tennessee employment law requirements HR must follow with respect to employee discipline.

  • Minnesota Court Extends Time to File Whistleblower Claims: Employment Law Manual Updated

    Date:
    22 December 2014
    Type:
    Editor's Choice

    The Minnesota Court of Appeals has extended the time in which to file a whistleblower claim under the Minnesota Whistleblower Act (MWA) from two to six years.

  • Employee Discipline: Minnesota

    Type:
    Employment Law Manual

    In-depth review of the spectrum of Minnesota employment law requirements HR must follow with respect to employee discipline.

  • Whistleblower Protections Handbook Statement: Delaware

    Type:
    Employee Handbooks

    Delaware employers with four or more employees that seek to inform employees about protections provided by the Delaware Whistleblowers Protection Act (DWPA), help fulfill notice obligations under the DWPA and help ensure that employees who engage in activity protected under the DWPA are not subject to retaliation should consider including this model policy statement in their handbook.

About this topic

HR guidance on the legal risks of retaliation in the workplace.