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 to include retaliation protections in forthcoming state paid sick leave law.
Updated to include forthcoming amendments to retaliation civil and administrative procedures.
Updated to include retaliation under the Nevada Pregnant Workers' Fairness Act, effecctive October 1, 2017.
Updated to include information on a Department of Labor Administration Review Board decision regarding the Sarbanes-Oxley Act's whistleblower provision.
Updated to include information on an appellate court case regarding the Conscientious Employee Protection Act (CEPA).
The 11th Circuit Court of Appeals upheld a $161,000 jury award to an Alabama narcotics officer whose employer refused to accommodate her need to pump breast milk following her maternity leave. The jury had found the employer illegally retaliated against the officer under both the Family and Medical Leave Act (FMLA) and the Pregnancy Discrimination Act (PDA).
Updated to include forthcoming amendments to the Volunteer Emergency Worker Job Protection Act.
Updated to reflect forthcoming amendment to New York City Human Rights law.
HR guidance on the legal risks of retaliation in the workplace.