Employers should proceed with caution
Continuing a trend, retaliation claims accounted for more than half of employee discrimination charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) in 2021. While some of these charges were likely unfounded, these numbers are a bellwether for the number of disgruntled workers in the workplace.
Anatomy of a retaliation claim
The classic retaliation scenario is that, after an employee reports something illegal or negative to the employer or otherwise asserts their employment rights, the employer takes unlawful adverse employment action against them. While many may think of wrongful discharge as the usual adverse action, negative employer actions cover a broad range of prohibited conduct.
The U.S. Department of Labor defines an adverse action as one that “would dissuade a reasonable employee from raising a concern about a possible violation or engaging in other related protected activity … [and] … can have a negative impact on overall employee morale.” In other words, retaliation may be designed to provide a warning to other employees to keep their complaints to themselves.
For example, in addition to wrongful termination, an adverse action could also include a demotion, a transfer to a less desirable position or shift, a decision not to promote the employee, undeserved or unwarranted disciplinary action, and a negative or unfair performance evaluation. In other words, while some instances of retaliation or overt forms of retaliation are much more subtle.
Illegal retaliation or reprisals occur when an employer takes materially adverse action against an employee because the worker engaged in work-related protected activities, including:
- Reporting to management or human resources a reasonable, good faith belief of unlawful activity in the workplace like discrimination, harassment, unpaid wages, and others
- Filing or pursuing a workers’ compensation claim
- Cooperating in a government investigation into a co-worker’s claim of illegal treatment at work
- Filing a lawsuit against the employer
- Requesting or taking leave from work for which the employee is eligible, such as under the federal Family and Medical Leave Act (FMLA)
- Requesting lactation breaks allowed by state and federal laws or complaining about noncompliance with legal requirements for breastfeeding in the workplace, such as a clean, private space that is not a bathroom
- Requesting job accommodations for religious practices or disabilities
- Refusing to follow an order at work that would cause the employee to do something illegal
- Discussing salary, wages, or other working conditions with coworkers
But what if there is a valid reason for materially adverse action against the employee?
Retaliation claims are often factually complex, but despite an employee engaging in protected activity, an employer can “discipline or terminate [a] [worker] if motivated by non-retaliatory and non-discriminatory reasons that would otherwise result in such consequences,” according to the U.S. Equal Employment Opportunity Commission (EEOC). In other words, an underperforming employee who sees “the writing on the wall” cannot insulate themselves from an adverse employment action simply because they complained about an illegal practice or reported discrimination or harassment.
Because so much is at stake—not least the costs associated with defending a lawsuit, the opportunity costs associated with management’s time devoted to the lawsuit rather than their essential duties, and a potential hit to employee morale—a Kentucky employer should engage experienced legal counsel straightaway for guidance to preempt potentially complicated situations that could result in charges of retaliation.
Retaining a knowledgeable employment attorney early on can help an employer lower the chances of retaliation charges by articulating expectations to management and creating a safe atmosphere for people to speak up. After all, an employer needs to know if illegal or unethical activity may be happening so it can investigate.
The lawyer can help the employer establish written anti-retaliation policies and procedures as well as set up ongoing anti-retaliation training for management, HR, and non-supervisory employees. A lawyer can provide guidance and representation to the employer about how to respond in a nonretaliatory way when they receive an informal or formal report of a violation of law in the workplace or find themselves defending an employee’s retaliation claim before a government agency or in court.
