practical matter, it is often difficult
for an employer to avoid negatively
affecting a complaining employee’s
situation, in the normal course of
managing the workforce. Employees
are laid off, disciplined, demoted,
transferred or passed over for
promotion regularly, and some of
them are bound to “claim,” rightly or
wrongly, they have been the subject
of retaliation.
the employee just has to show that
some negative employer action
occurred to him/her after complaining about discrimination—and does
not have to prove the underlying
discrimination. It is much easier to
prove that you were demoted,
transferred or terminated; and if you
prove that it happened after you
complained, it becomes more
difficult for the employer to prove to
the jury’s satisfaction that the action
was not caused by the complaint.
So a judge or jury can decide
that a manager did not discriminate against an employee but that
the company fired the plaintiff for
complaining about the (unproven)
discrimination and award the
employee damages for that. This is
why so many charges and court
complaints today include not only
a discrimination and/or harassment claim but a retaliation claim
as well. About 70 percent of the
employment-discrimination
lawsuits defended by my firm
include a retaliation claim, and all
our training sessions advise clients
how to avoid acts of retaliation.
Supreme Court expanded the
interpretation of retaliation?
DiversityInc Why is it easier
for employees to prove
retaliation than discrimination
or harassment?
Most jurors and judges do
not want to believe that corporate
managers discriminate against or
harass employees. They want clear,
unambiguous and specific evidence
of such discrimination, which is
hard to come by. After all, in today’s
world, when would a manager say,
“You didn’t get this promotion
because you’re too old”? So employees must make their cases most
often on circumstantial evidence,
which will be disputed and debated
and may be a “he said/she said”
situation. With retaliation claims,
DiversityInc How has the
RETALIATION CHARGES SURGE
OF CHARGES
34.3%
36.0%
ANNUAL PERCENT OF ALL
DISCRIMINATION CHARGES
32.3%
27.1% 27.5% 27.0% 27.9%
28.6%
29.5%
29.8%
25.4%
Last year, in Crawford v.
Metropolitan Government of
Nashville and Davidson County, the
Supreme Court ruled that Title VII
protects employees from retaliation
when they cooperate in internal
harassment investigations—in this
case, an employee said she was fired
from her job for answering questions about a supervisor who had
sexually harassed her. Although the
Supreme Court’s decision was
unanimous, Justice Samuel Alito
expressed concern about the rise in
EEOC retaliation charges and
potential for the trend to accelerate
because of the court’s more expansive interpretation. Two years ago in
CBOCS West Inc. v. Humphries, a
Black manager of a Cracker Barrel
restaurant argued that he was fired
for complaining that a white
manager had been motivated by
racial discrimination in dismissing a
Black employee. The Supreme
Court ruled that 42 U.S.C. §1981, a
post–Civil War statute prohibiting
race discrimination, authorizes
retaliation claims, even though the
statute does not mention retaliation
specifically. This ruling is significant
because §1981 has a longer statute of
limitations than Title VII and,
unlike Title VII, contains no
limitations on the amount of
punitive and pain-and-suffering
damages available. Under Title VII,
a plaintiff must file a charge of
discrimination with the EEOC prior
to suing in federal court within 180
or 300 days of the alleged discriminatory act, depending on the state.
Under §1981, a plaintiff may file a
lawsuit immediately and has four
years in which to do so.
1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
Source: EEOC
DiversityInc How are employers taking steps to avoid
retaliating against employees?
June 2010 181
