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 Fort Lauderdale's Human Relations Ordinance, effective September 17, 2019.
Updated to include forthcoming retaliation protections under the Menlo Park minimum wage ordinance.
Updated to reflect amendments to state equal pay law, effective October 8, 2019.
Updated to include the Oregon Workplace Fairness Act, effective September 29, 2019.
Updated to include corrective action provisions under the Act Combatting Sexual Assault and Sexual Harassment, effective October 1, 2019.
Updated to reflect the Civil Air Patrol leave law, effective October 1, 2019.
Updated to include retaliation protections in the state organ and bone marrow donation leave law, effective October 1, 2019.
Updated to reflect the forthcoming Grand Rapids Human Rights Ordinance.
Updated to include amendments to the MHRA, effective September 19, 2019.
HR guidance on the legal risks of retaliation in the workplace.