Rise in Retaliation Claims
For over a decade, the Equal Employment Opportunity Commission (“EEOC”) has seen a significant increase in retaliation claims. Since 2000, the number of such claims filed annually has increased by more than 100 percent. In 2014 alone, retaliation accounted for 42.8% of all claims processed by the EEOC. It is by far the most common type of discrimination the EEOC addresses.
What is a Retaliation Claim?
“Retaliation” means any adverse action(s) taken by an employer in response to a “protected activity” in which an employee engages. A “protected activity” means a formal or informal complaint about harassment or discrimination at work, whether the harassment or discrimination is directed against you or against someone else, as long as your complaint was based on a reasonable, good-faith belief that illegal harassment or discrimination occurred. For example, if you complain about your employer and your employer reprimands you, that is considered retaliation. What the employer did was illegal. An appropriate response might be to file a claim against your employer with a state or federal agency such as the Equal Employment Opportunity Commission (federal) or the Massachusetts Commission Against Discrimination (state of Massachusetts). The specific type of claim you need to file would be a Retaliation Claim.
Why the Increase?
There are two major reasons why retaliation claims have increased. The first has to do with recent Supreme Court rulings that have broadened the categories of people who qualify for anti-retaliation protection under Title VII of the Civil Rights Act. The second is the greater success employees have had in proving retaliation compared to other types of discrimination charges.
Supreme Court Rulings
In recent years, the Supreme Court has issued rulings that expand the criteria that qualify someone for protection from the anti-retaliation laws. For starters, rulings have allowed the definition of “employee” in Title VII to include former employees in order to prevent retaliation in such areas as references and rehiring.
Rulings have also been pivotal in broadening “zones of interests” when properly identifying victims of retaliation. For example, if you file a claim against your employer and your employer takes action against your spouse, and your spouse is also an employee, under the right circumstances this action can be considered illegal retaliation.
The Supreme Court has also ruled in favor of plaintiffs who claim their employers retaliated after they made oral as well as written complaints. The Supreme Court views retaliation in the same way, whether the original complaint was presented formally or informally.
Rulings have also broadened the spectrum of retaliation to include acts that affect an individual outside the workplace. In fact, the Supreme Court has made clear that any action that would discourage a reasonable employee from making a discrimination complaint violates Title VII’s anti-retaliation clause.
Judges and Juries “Get It”
It’s easier for a complainant to prove retaliation to the satisfaction of a jury than to prove other types of discrimination. It is easy for people to believe that a person in power reacted negatively to a complaint made by a subordinate through the use of some retaliatory measure. It is actually harder for people to believe that a subordinate’s treatment would be exactly the same after he/she took part in an action his/her manager didn’t like. Jurors and judges recognize that a complaint against an employer creates resentment in the employer, and since that employer is in a position of power, many understand that often, people in this employer’s situation would retaliate. Some may even argue that this is human nature. Regardless, the action is illegal under Title VII. Title VII protects the rights of employees by making sure those in positions of power cannot abuse their power if they do not agree with complaints of discrimination by their subordinates.
How to Identify You are a Victim of Retaliation
You can identify that you’re a victim if all of the below apply to you.
- You engaged in any protected activity;
- Your employer took some adverse action(s) against you; and
- There is a causal link between your protected activity and the adverse action.
What to do next?
Whether you are not sure if you qualify or you are certain that you do, your next step is to seek counsel from an employment lawyer who defends employee rights as soon as possible. An experienced attorney will be able to identify the actions you need to take and advise you on how to take them.