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 amendments to the New York State Human Rights Law regulations regarding gender identity or expression, effective June 24, 2020.
Updated to reflect retaliation protections in the forthcoming law regarding pregnancy accommodations.
Updated to reflect an amendment to the Florida Civil Rights Act.
Updated to reflect amendments to the enforcement provisions of the Florida Human Rights Act, effective July 1, 2020.
Updated to reflect the Virginia Values Act, effective July 1, 2020.
Updated to reflect retaliation protections in the Chicago Fair Workweek Ordinance, effective July 1, 2020.
Updated to reflect amendment extending protections to interns, effective July 1, 2020.
Updated to include retaliation protections in the Seattle Hotel Employee Protections Ordinances, effective July 1, 2020.
Updated to include retaliation protections regarding worker misclassification, employees' discussion of wages, nonpayment of wages and noncompete agreements for low-wage workers; to include whistleblower protections; and to reflect the Virginia Values Act, all effective July 1, 2020.
HR guidance on the legal risks of retaliation in the workplace.