Employment retaliation claims: A growth industry

Listen to this article

Last year, for the first time, there were more retaliation charges filed with the U.S. Equal Employment Opportunities Commission (EEOC) than sex discrimination charges. The number of retaliation claims filed in state and federal courts and agencies continues to climb. It is not unusual for employees to allege retaliation on top of underlying discrimination claims. And it is not unusual for employers who successfully defend against the discrimination claims to find it much harder to successfully fight off claims of retaliation.

Most, if not all, anti-discrimination laws include anti-retaliation provisions. This makes logical sense. Anti-discrimination laws give an employee the right to protect themselves against discriminatory acts — what good would those rights be unless the employee’s ability to exercise those rights is also protected? Accordingly, the law prohibits employers from taking negative action against employees who exercise their rights under anti-discrimination laws.

The U.S. Supreme Court seems to have taken an interest in anti-retaliation law as of late, and has actually broadened the scope of anti-retaliation protections. Just a couple years ago, in Burlington Northern & Santa Fe Railroad Co. v. White, the court made clear that unlawful retaliatory acts are not confined to tangible employment actions such as disciplines and terminations.

Even less tangible acts — such as, for instance, excluding an employee from social activities because of his or her discrimination complaint — can constitute unlawful retaliation if such exclusion has a negative impact on the employee’s job or career opportunities. In other words, employers who simply ignore or stay away from an employee who has made a discrimination or harassment complaint may be risking a retaliation claim. The law expects employers to treat such employees no differently than as if they had never made such a complaint.

Just a couple weeks ago, the Supreme Court again expanded the scope of anti-retaliation law in two separate decisions. In Gomez-Perez v. Potter, the court found that the anti-retaliation provisions in the Age Discrimination in Employment Act (ADEA) apply to federal employees, even though the ADEA’s language does not expressly include them. Then, in CBOCS v. Humphries, the court held that 42 U.S.C. §1981 (“Section 1981”) prohibits retaliation against an employee exercising his or her race discrimination rights — even though Section 1981 is silent as to whether the law covers retaliation claims.

These decisions were not particularly surprising — most of the U.S. Courts of Appeals had previously held that Section 1981 covered retaliation claims. Nevertheless, these decisions illustrate the continued willingness of even this conservative court to protect the rights of employees to enforce anti-discrimination rights.

There is a third employment retaliation case currently pending before the U.S. Supreme Court, though it is not likely to be heard until October. That case, Crawford v. Nashville and Davidson County, involves the scope of what sort of activities are to be considered “protected activities” for purposes of anti-retaliation law. The employee, Crawford, alleged that she was fired not for making a discrimination complaint, or participating in formal legal proceedings involving discrimination rights, but rather for participating in her employer’s internal investigation into a co-worker’s allegations of sexual misconduct.

The district court dismissed the complaint, holding that participation in an employer’s internal discrimination investigation is not a “protected activity” for purposes of anti-retaliation law. The Sixth Circuit Court of Appeals affirmed. Crawford petitioned for certiorari, arguing that, without anti-retaliation protections, employees may be discouraged from participating in internal discrimination investigations. Crawford’s position is supported by a number of amici, including the EEOC and the Bush administration.

It will be interesting to see how the Supreme Court decides Crawford. It seems unlikely that the court will affirm the Sixth Circuit’s restrictive view of what constitutes “protected activity.” But, whatever the court does, its decision will likely impact how employers respond internally to discrimination and harassment complaints.

No matter what, it is clear that employers must continue to remain sensitive to issues of retaliation whenever an employee has been involved in a discrimination or harassment complaint. As hard as it may be, the most prudent course of action will generally be to treat the employee as if he or she had never made or been involved with the complaint.