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 reflect retaliation protections under the Los Angeles Fair Chance Initiative for Hiring Ordinance, effective January 22, 2017; enhanced to improve comprehensiveness with the addition of retaliation protections in Los Altos, Malibu and Santa Clara.
Updated to include forthcoming retaliation protections under Philadelphia's wage equity ordinance.
The Occupational Safety and Health Administration (OSHA) has issued its Recommended Practices for Anti-Retaliation Programs, which applies to both public and private employers. The resource is advisory only.
Updated to reflect the renaming of the DOJ Civil Rights Division's Office of Special Counsel for Immigration-Related Practices, effective January 18, 2017.
Updated to reflect amendments to the state concealed carry law, effective January 1, 2017.
Updated to incorporate the medical marijuana law, effective January 3, 2017.
Updated to reflect discipline concerns regarding a forthcoming law that addresses weapons in the workplace.
Updated to reflect retaliation protections based on caregiving responsibilities and reproductive healthcare decisions, effective December 30, 2016.
Updated to reflect a law restricting forum selection clauses relevant to employee terminations, effective January 1, 2017.
Updated guidance to reflect amendments to the state's Fair Pay Act prohibiting pay disparity based on race, ethnicity or prior salary, effective January 1, 2017.
HR guidance on the legal risks of retaliation in the workplace.