Retaliation claims are now the most common type of claim filed with the EEOC. Twenty years ago, only 15% of the charges complained of retaliation. By 2013, that total had leapfrogged to 41% (yes that number includes charges brought under federal whistleblower statutes, such as Dodd-Frank – but that’s a big jump), and is higher than race (35%), sex (29%), or age (22%). But what is causing this jump, and how do we combat this upward trend in retaliation claims?
A few thoughts to ponder: For one thing, employers (and society-at-large) have simply become better at not discriminating against people for status-based reasons (such as race and age), leading to fewer status-based discrimination charges (that’s a good thing!). For another thing, plaintiffs’ attorneys are great at finding ways to “bundle” a retaliation claim with an underlying discrimination claim (that can be a bad thing!). Just have the plaintiff identify a single bad thing that occurred at work after he or she complained to the boss about mistreatment, and a Title VII retaliation claim is born (but let’s not “go there!”).
Maybe the main reason for the rise in retaliation claims is the perception that these are just easier cases to sell to juries. Traditional discrimination claims can be difficult to sell to juries (and hard for a plaintiff to prove) because folks do not like to believe that their bosses are bigoted or sexist. But it easier to tell a story about someone who complains at work all the time — and then for what the plaintiff calls “retaliation” and claims management punished him for complaining in the first place. In that sense, retaliation claims have broader, more intuitive appeal to a jury than do standard discrimination claims.
Does it matter that retaliation claims are held to the higher causation standard (think “burden of proof”) than their Title VII cohorts? Maybe so, but maybe not. In its 2013 Nassar v. UT Southwestern decision, the Supreme Court held that Title VII retaliation claims require proof of “but-for” causation, which is harder for plaintiffs to prove than the “motivating factor” standard that applies to Title VII discrimination claims. The distinction might make a difference in the pre-trial pleadings that are filed (like a summary judgment brief) and may account for more retaliation cases being dismissed before trial as a result. Indeed, the sample size of retaliation cases proceeding to trial since Nassar is still too small to predict any obvious trends or patterns. But as commentators have suggested, the fight over “but-for” vs. “motivating factor” could be a distinction without a difference when it comes to convincing a jury.
What does the rise in retaliation claims mean for employers? Retaliation is harder to spot and to prevent than traditional discrimination claims (because it can take on many forms, can be harder to prove that necessary link, but also harder to prove that it didn’t happen). EEO training tends to focus on what everybody already knows — don’t fire an employees for being too old, or Hispanic, or for following a strange religion. Retaliation (and what it can look like) needs to be addressed thoroughly as part of your anti-harassment/non-discrimination training and all managers and employees need to be reminded that retaliating against someone who made a complaint (or treating someone differently after they’ve complained about discrimination or harassment) is grounds for disciplinary action as well.
If you don’t have an anti-retaliation policy, then implement one immediately. If you already do, then make it part and parcel of your anti-discrimination policy. Let management know that retaliation is illegal discrimination, and that it cannot be tolerated. Document the anti-retaliation training so that you can show, down the road and if necessary, what meaningful steps you took to prevent the retaliation. Finally, consider making retaliation counseling a routine part of each EEO investigation. If Employee A makes a claim of age discrimination against Manager B, then be proactive with Manager B regarding the company’s legal and ethical obligations to not retaliate against the complainer.