THEINSIDEVIEW
On the heels of discrimination, employee
retaliation charges have hit record levels.
What’s spurring this trend?
DiversityInc Why are
retaliation complaints so
important, and what’s spurring
their increase?
;EMPLOYMENT-LAW TRENDS;
Retaliation
Claims Rising
BY WELDON LATHAM
CHARGES OF EMPLOYEE RETALIATION—when an employer takes
adverse action against an individual because he or she engages in a legally
protected activity or participates in the complaint process—are trending
upward, reports the Equal Employment Opportunity Commission (EEOC).
In 2000, 21,613 such charges were filed with the EEOC. In 2009, that number
jumped 55 percent to 33,613, representing 36 percent of all discrimination
claims filed with the commission (the same percentage of racial-discrimination claims filed last year). Why the upsurge? What’s behind this
trend? DiversityInc asked employment and diversity attorney Weldon
Latham to find out.
In enacting Title VII and
other workplace antidiscrimination
statutes, Congress recognized that
EEOC and other agencies had
limited enforcement resources, and
thus the statute relies largely on the
“self-enforcement” mechanism of
private-party complaints.
Employees who believe they
have been unlawfully discriminated
against (or harassed) can either use
their company’s internal complaint
system or file a charge with the
EEOC. Recognizing that employees
might be reluctant to file charges
knowing their jobs could be at
stake, Congress made “retaliation”
by employers unlawful. The law of
retaliation is fairly complex, but
generally, employees have federal
rights not to suffer adverse consequences merely for complaining
about an unlawful employment
practice (such as by filing a charge
of discrimination) or participating
in the complaint process (such as
being a witness for another
employee’s complaint).
There are several factors at work
behind the increase in retaliation
claims. First, the recession and
resultant surge in layoffs has led to
the rise in discrimination charges.
As more workers become unemployed, rather than easily changing
jobs, they challenge their employers’
decisions and seek compensation
and/or reinstatement. Second,
employees and plaintiffs’ attorneys
have begun to learn that retaliation
claims are often easier to prove than
the discrimination and harassment
claims they allege gave rise to the
retaliation in the first place. Third,
the U.S. Supreme Court recently
issued rulings expanding the reach
of retaliation claims. Fourth, as a
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180 DiversityInc
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