What Is Retaliation And What Does It Mean As An Employer?

Claims of retaliation are quite prevalent and are worrisome to employers. Claims of Retaliation can arise after an employee engages in an action which is considered to be a protected activity.  Protected activities can take on many different forms but one of the most common forms is the filing of a complaint regarding harassment or discrimination with the employer, the EEOC, or the PHRC. However, many employment-related statutes contain an anti-retaliation provision and recognize an employee’s right to file a claim for retaliation. Recent cases have extended these protections to include participation in an employer’s internal efforts to investigate or remediate an alleged discriminatory incident. These anti-retaliation provisions are intended to make an employee feel comfortable making a complaint or assisting someone else do so without fear of a negative impact on his or her job. It should be noted that an employee can prevail on a retaliation claim even if the underlying discrimination or harassment claim proves groundless.

To establish a claim of retaliation, a plaintiff must show that he or she engaged in a protected activity, that the employer was aware of this activity, and the employer took an adverse employment action in response to the protected activity. The burden then shifts to the employer to demonstrate a legitimate non-discriminatory reason for why it took the employment action. Subsequently, the employee must then demonstrate that the employer’s proffered reason is merely a pretext for an illegal retaliatory action. One reason retaliation claims are so prevalent and complicated to defend and avoid is that retaliation claims can hinge on an abstract adverse employment action. Some recent decisions have demonstrated that a retaliation claim can be asserted if an employee feels a material adverse effect to the terms and conditions of his or her employment as a result of engaging in a protected activity. A materially adverse employment action, however, must be more than a mere inconvenience that does not cause any actual harm to the employee. For example, it is possible that a failure to invite the employee to a dinner could be retaliatory if that dinner included a training session that could affect the advancement of that person’s career. These claims can be much more difficult to avoid and defend than the underlying discrimination claim.

That said, however, employees who engage in protected activities are not granted free rein to violate employer policies. To the extent the employee violates company policy or fails to adequately perform his or her job, an appropriate response by the employer in accordance with company policy is permissible. However, it is important for an employer to properly and completely document all instances, actions, and decisions involved in the rendering of the discipline or employment action in an effort to refute any retaliation claim which may be asserted.

As with all employment law matters, there are many nuances and potential implications relative to every employment decision. To that end, we encourage all employers to tread carefully so as to not run afoul of the many employment statutes governing their interactions with their employee.

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