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Confucius Says: He Who Retaliates Digs His Own Grave

The thirst for revenge is among the strongest of human emotions.  In fact, the innate human desire to “get even” has driven much of the history of the world.  But acting on feelings of revenge can have dire consequences, not only in the world at large, but particularly in the world of employment law.

Most employment-protection laws contain anti-retaliation provisions.  And courts are broadly interpreting and applying these provisions.
The U.S. Supreme Court has recognized and expanded the right to bring retaliation claims in a series of cases over the past several years.  In January, the Court ruled that Title VII’s anti-retaliation provision covered an employee who was fired shortly after his fiancée, who worked for the same company, filed a sex discrimination claim.  (Supreme Court Finds in Favor of Fired Fiance 01/25/2011)
In March, the Court held that the FLSA’s anti-retaliation provision, which uses the phrase “filed any complaint,” applies to an employee’s oral complaints. 
These cases follow prior decisions in the last five years in which the Court ruled that: 
·       Title VII’s anti-retaliation clause, which refers to “opposition,” does not require active opposition, but encompasses involuntary participation, such as making statements during an employer’s internal investigation;
·       Employees can bring retaliation claims under the ADEA;
·       Employees can bring retaliation claims under Section 1981 of Chapter 42 of the U.S. Code (which prohibits race discrimination), even though the statute does not refer to retaliation; and
·       Title VII’s anti-retaliation provision is not limited to adverse actions that affect the terms or conditions of employment, but instead cover any adverse action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”     
In May, the Kansas Supreme Court ruled that a claim for retaliation exists when an employee is fired for filing a wage claim under the Kansas Wage Payment Act, even though the Act itself does not provide for such a claim.  The Court reasoned that if employees are not protected from retaliation for exercising their statutory rights, the protections afforded by the law would be illusory.  (Employee in Hog Heaven over Kansas Supreme Court Ruling 05/20/2011
Juries are also more open to retaliation claims. Statistics show that retaliation claimants are more likely to prevail at trial and recover significant damages than typical discrimination claimants.  Why are retaliation claims different?  One theory is that jurors, as a general rule, do not want to believe that managers are racist or sexist; but they understand it is human nature to want to strike back at people who attack them or the company.  In fact, there are a growing number of cases in which the employee’s underlying discrimination claim fails, but the employee prevails on the accompanying retaliation claim.        
With courts and juries more receptive to retaliation claims, the number of retaliation claims filed is soaring.  Over the past ten years, the number of retaliation claims filed with the EEOC has increased by sixty-seven percent.  Retaliation claims now account for over thirty-six percent of all charges filed with the EEOC, up from twenty-seven percent ten years ago.
Given the dangers posed by retaliation claims, it is essential that the EEO and anti-harassment training you provide to managers (you are providing this training at least annually, right?) also includes instruction about retaliation. Make sure your managers know what to do—and what not to do—when an employee makes a complaint or accuses them of wrongdoing. Give managers role-playing scenarios to teach them how to respond under fire, and use case studies to drive the points home.  Remind managers that engaging in a retaliatory act, even if they believe the underlying accusation is bogus, is a violation of company policy (you do have an anti-retaliation policy, right?) that subjects them to discipline or discharge.  
The great Chinese philosopher Confucius said, “Before you embark on a journey of revenge, dig two graves.”  Relay that message to your company’s managers.  Make sure they understand that if they take an adverse action against an employee for making a complaint about discrimination, harassment, or failure to pay overtime or promised wages, reporting an on-the-job injury or filing a workers compensation claim, or otherwise exercising protected workplace rights, they may be digging their own graves.

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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers Image
Boyd Byers, the General Employment Law Guy
Jason Lacey Image
Jason Lacey, the Employee Benefits Guy
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