Employer Retaliation, Part 1: Understanding What Turns a Permissible Adverse Employment Action Into Prohibited and Actionable Retaliation
In a labor market dominated by “at-will” employment relationships, employers have a fairly wide berth when it comes to terminating, demoting, disciplining, or otherwise taking adverse action against an employee. Firing an employee with a perceived bad attitude, one who chews their food loudly, one who likes pickleball – the most petty or ridiculous reason for an adverse employment action, even if unrelated to job performance, is usually legally permissible. But when an adverse action is related, even slightly, to an employee’s membership in a legally protected class or their exercise of a legal right, the “at-will” nature of the relationship becomes irrelevant and leaves an employer at risk of a costly and disruptive claim for prohibited and actionable retaliation.
A multilayered patchwork of federal, state, and local civil rights and employment laws all provide employees with robust protections and remedies when an employer’s hiring and employment decisions are made in response to a worker raising a concern, making a complaint, reporting a legal violation, or otherwise engaging in conduct expressly permitted and protected by such laws.
Far from being an afterthought or adjunct to discrimination, harassment, safety, wage and hour, or other employment-related claims, retaliation is, in fact, the most frequently alleged complaint made with the U.S. Equal Employment Opportunity Commission (EEOC). Year after year, retaliation charges outnumber all other types of discrimination claims, presenting countless employers with significant legal and financial risks, including substantial monetary damages, reputational harm, and costly litigation. Accordingly, understanding and preventing retaliation is paramount for any employer.
In this first post in a series, we discuss the fundamentals of prohibited employment retaliation – what it is, which laws these claims can arise from, and why avoiding and defending against allegations of retaliation can be so tricky for employers.
Retaliation Protections Are Baked Into Almost Every Employment Law
If a law provides an employee with rights and protections, it is almost axiomatic that the law will also prohibit their employer from retaliating against them for exercising those rights or availing themselves of those protections. Such is the case for the federal and state laws from which most retaliation claims arise.
For example, Title VII of the Civil Rights Act of 1964 protects employees and applicants against discrimination based on race, color, religion, sex, and national origin. It also makes it unlawful to retaliate against an individual for opposing any practice made unlawful by Title VII or for making a charge, testifying, assisting, or participating in an investigation, proceeding, or hearing under Title VII. The Americans With Disabilities Act (ADA) provides similar protections against retaliation for employees and job candidates requesting reasonable accommodations, filing ADA complaints, or participating in ADA-related investigations. The Age Discrimination in Employment Act (ADEA), Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and a host of subject matter-specific whistleblower protection laws are also part of the constellation of federal anti-retaliation laws.
The protections provided by federal law are complemented (or complicated) by corresponding state laws, including Michigan’s Elliott Larsen Civil Rights Act (ELCRA) and Michigan’s Occupational Safety and Health Act (MIOSHA). When employees file retaliation claims, they often cite both federal and state laws, as state retaliation protections can be more generous to employees than their federal counterparts.
Elements of a “Retaliation” Claim
While the language used in various anti-retaliation laws may differ slightly, the fundamental definition of “prohibited retaliation” broadly applies. Such retaliation occurs when an employer takes adverse action against an employee because the employee engaged in a protected activity or threatened to report, either internally or externally, a legal violation, such as discrimination, harassment, or safety concerns. The employer essentially punishes the employee for exercising their right to speak up against wrongdoing within the company.
Breaking that down into its elements, an employee must prove the following when claiming prohibited retaliation:
- Adverse action by the employer against an employee (which can involve a multitude of employer acts and decisions beyond termination or demotion).
- Protected activity engaged in by the employee.
- A causal connection between the employee’s engagement in protected activity and the employer’s adverse action.
Each of these elements is nuanced and multifaceted, and each can be the subject of significant contention in retaliation claims and lawsuits, as the inability to prove any single aspect of retaliation will doom the employee’s cause of action. To make things even more complex, the issue of the causal connection between the adverse action and the protected activity often involves shifting the burden of proof between the employer and employee depending on the evidence and testimony presented.
In upcoming posts, we will dive deeper into each of these elements and provide employers with actionable guidance on how they can reduce the risk of retaliation claims and effectively counter such claims when they arise. Given the frequency of these claims and the steep financial and reputation costs and disruption involved in defending against them, employers should develop a comprehensive understanding (with the assistance of counsel) of prohibited retaliation so they can avoid committing one of the most common unforced legal errors in the employer-employee relationship.
NEXT: Breaking Down the Elements of a Retaliation Claim