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

  • Employee Discipline

    Type:
    Employment Law Manual

    Before disciplining employees, employers need to implement policies and procedures that enforce rules of conduct and communicate those policies to employees. This section reviews the discipline process, different discipline types, alternatives to discipline and special discipline situations, including attendance, theft, substance abuse and whistleblowers.

  • Employee Discipline: Arkansas

    Type:
    Employment Law Manual

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

  • SEC Announces First Whistleblower Action Addressing Confidentiality

    Date:
    07 April 2015
    Type:
    News

    The Securities and Exchange Commission (SEC) initiated a first-of-its-kind enforcement action intended to regulate confidentiality provisions in a workplace agreement that could potentially stifle whistleblowers.

  • Employer Liability Concerns in Employee Management

    Type:
    Employment Law Manual

    Employers need to do everything they can to minimize claims by employees and the government. This section assists HR professionals in implementing proper policies and procedures, and understanding where the greatest risks lay and what the federal government's major enforcement initiatives are.

  • Employee Discipline: Virginia

    Type:
    Employment Law Manual

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

  • Whistleblowing Handbook Statement: California

    Type:
    Employee Handbooks

    California employers seeking to promote an atmosphere in which employees are comfortable reporting illegal or unethical behavior internally, and to help ensure that they are not retaliated against for doing so, should consider including this model policy statement in their handbook.

  • Employee Discipline: Colorado

    Type:
    Employment Law Manual

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

  • Workers' Compensation: Nevada

    Type:
    Employment Law Manual

    In-depth review of the spectrum of Nevada employment law requirements HR must follow with respect to workers' compensation.

  • Performance Appraisals: Colorado

    Type:
    Employment Law Manual

    In-depth review of the spectrum of Colorado employment law requirements HR must follow in respect to peformance appraisals.

  • Whistleblower Protections (Conscientious Employee Protection Act) Handbook Statement: New Jersey

    Type:
    Employee Handbooks

    New Jersey employers seeking to inform employees of their rights under the New Jersey Conscientious Employee Protection Act (CEPA) and to provide detailed information regarding reporting procedures should consider including this model policy statement in their handbook.

About this topic

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