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

  • Date:
    11 September 2014
    Type:
    Legal Timetable

  • Performance Appraisals: Illinois

    Type:
    Employment Law Manual

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

  • 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.

  • Performance Appraisals: New Hampshire

    Type:
    Employment Law Manual

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

  • 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: Massachusetts

    Type:
    Employment Law Manual

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

  • Dodd-Frank Retaliation Protections Do Not Apply Outside of US, Federal Appeals Court Rules

    Date:
    19 August 2014
    Type:
    News

    The retaliation provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) do not apply outside the US, the 2nd Circuit Court of Appeals has ruled. With this decision, the 2nd Circuit has joined the 5th Circuit in determining that, although other Dodd-Frank provisions do apply outside of the US, the retaliation provisions do not.

  • Employee Discipline: Delaware

    Type:
    Employment Law Manual

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

  • Performance Appraisals: New York

    Type:
    Employment Law Manual

    In-depth review of the spectrum of New York employment law requirements HR must follow with respect to performance appraisals.

  • Employee Discipline: New York

    Type:
    Employment Law Manual

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

About this topic

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