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Harassment & Discrimination

Workplace Retaliation - More Damaging Than Ever

Aug 01, 2012

Retaliation Claims

Retaliation claims are on the rise and now represent almost 16% of all EEOC claims. Retaliation claims are now the easiest EEOC claim to file and one of the hardest to defend. With the average settlement of an EEOC claim now almost $475,000; HR needs to take proactive steps to protect their organization and prevent retaliation claims before they happen.

Last year the U.S. Supreme Court greatly expanded the reach of workplace retaliation claims with two key decisions that broadly interprets workplace-related anti-retaliation regulations.

  • Kasten v. Saint-Gobain Performance Plastics: The Court made clear that verbal complaints to employers are subject to the anti-retaliation laws.
  • Thompson v. North American Stainless, LP:  Blockbuster U.S. Supreme Court case that expanded workplace retaliation to cover third parties in a “zone of interests” related to the complainant.
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Expanded Protection

The Supreme Court was very broad in the interpretation of the anti-retaliation provision of Title VII. Their decision means that workplace retaliation protection now applies to:

  • Anyone harmed by retaliation, even if they did not themselves filed a charge of discrimination.
  • A “relative” or “close associate” of a worker who filed a discrimination.

The Fair Labor Standards Acts (FLSA's) anti-retaliation provision forbids employers "to discharge ... any employee because such employee has filed any complaint" alleging a violation of the Act. The statutory term "filed any complaint" now includes both Oral Complaints and Written Complaints.

Implications for HR & Management Professionals

For HR Professionals, these important, expansive cases make training in retaliation prevention imperative. All employers should institute and implement an anti-retaliation training program, to be provided at least yearly, to all supervisors and employees. Such training should cover:

  • Unlawful Harassment Prevention and Discrimination Prevention.
  • The employer’s anti-retaliation policy and all laws covered by the policy
  • Examples of retaliation in the employer’s specific industry or business
  • The employer’s internal procedure for bringing complaints of unlawful retaliation The various parties that can engage in retaliation, including the employer, third parties and coworkers
  • Supervisory training to identify potential retaliation incidents and when to involve HR

Workplace Answers works with organizations that are unsure how to protect themselves from retaliation and other employment lawsuits by providing a wide range of online compliance training courses.

These cases also highlight the need for comprehensive “No Retaliation” policies that cover all potential underlying grounds for retaliation, including, but not limited to:

    • Unlawful Harassment
    • Unlawful Discrimination 
    • Family Medical Leave Act (FMLA) 
    • National Labor Relations Act (NLRA)
    • Fair Labor Standards Act (FLSA)
    • Occupational Safety and Health Administration (OSHA)
    • Equal Pay Act (EPA)
    • Employee Retirement Income Security Act (ERISA)
    • Pregnancy Discrimination Act (PDA)
    • Uniformed Services Employment and Reemployment Rights Act (USERRA)
    • Sarbanes-Oxley Act

Our Harassment and Discrimination prevention training suite will ensure that all supervisors and employees have the information they need to prevent EEOC Claims.

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