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 information on the retaliation protections under the Wisconsin Bone Marrow and Organ Donation Leave Act, effective July 1, 2016.
Updated to include retaliation protections in the forthcoming state right to request law.
Updated to reflect discipline concerns regarding forthcoming state medical marijuana law.
Updated to reflect forthcoming law granting employees the right to inspect their personnel files.
Updated to include retaliation protections under the state's forthcoming pregnancy accommodations law.
Updated to reflect discipline concerns regarding an employee's right to take unpaid time off to respond to a subpoena, effective June 6, 2016.
Updated to reflect discipline concerns regarding employee social media privacy law, effective June 10, 2016.
Updated to include forthcoming law prohibiting retaliation based on request for flexible work schedule.
Enhanced to improve the comprehensiveness, organization and scope of coverage and updated to reflect forthcoming requirements for employers to electronically report injury and illness data to OSHA.
HR guidance on the legal risks of retaliation in the workplace.