Retaliation Claims Continue Trending Upwards

In 2011 – for the second year in a row – there were more charges of retaliation filed with the U.S. Equal Employment Opportunity Commission (“EEOC”) than any other type of charge.  Retaliation occurs when an employee suffers an adverse employment action, e.g. termination or demotion, because they complained about some impermissible employer activity.  Last year, 37.4% of all EEOC charges were based on retaliation; ten years ago retaliation only accounted for 27% of EEOC charges.

Generally speaking, retaliation claims are easier to prove than discrimination claims; a point not lost on the Plaintiffs’ bar.  Additionally, over the past few years court decisions have opened the door for even more retaliation charges to be filed.

Two 2011 decisions by the U.S. Supreme Court continued this trend.  In Thompson v. North American Stainless, LP, the Supreme Court held that it was impermissible retaliation for an employer to terminate the fiancée of a complaining employee, opening the door for third-parties to assert charges of retaliation.

In Kasten v. Saint-Gobain Performance Plastics Corp., the Supreme Court held that an employee’s oral complaint of a wage and hour violation was afforded the same protection as a written complaint.  This decision means employers must now also be mindful – and should keep records of – any oral complaints by employees that could lead to retaliation claims.

For more information on handling and preventing retaliation claims, please contact Theo Lu at (706) 259-2586 or click on the email link on his bio page.