Retaliation Claims and Steps Employers Should Take to Avoid or Lessen Them Although claims alleging retaliation in the workplace have always been a problem, the number of claims for unlawful retaliation in the workplace nearly doubled within a short 12-year span. Currently, retaliation is the most common type of employment claim – surpassing claims for both race discrimination and gender discrimination in the workplace.

This raises many questions, some of which include the following:

  • Why are retaliation claims so prominent in the workplace?
  • Have there been any important changes that have led to retaliation claims being more and more common?
  • Is there any way that employers can reduce the occurrences of retaliation claims in their workplaces?

Why Are Retaliation Claims Common?

Retaliation claims are common for a number of reasons. In general, retaliation claims have become more common over the years due to the following:

  • Developments with legislative and case law
  • Widened scope of parties protected against retaliation
  • Lowered burden of proof
  • Expansions in the damages available for recovery
  • Attribution to human nature

Employers do not always understand why retaliation claims are so common in employment. However, failing to understand retaliation claims and the reasons why they are common could result in a greater risk of encountering retaliation claims from your employees. Because of that, it is essential that you have a thorough understanding of retaliation claim.

What Are The Elements Of Retaliation Claims?

There are three main elements necessary for retaliation claims. Employees have to prove all of the following:

  1. He or she engaged in an activity protected by employment law.
  2. The employer acted unfavorably or adversely against the employee.
  3. There is a direct, causal relationship between the employee engaging in protected activity and the employer’s adverse/unfavorable treatment towards the employee.

The key to understanding retaliation claims is to understand the activities that are generally protected. These protected activities include some of the following:

  • Filing an employment claim
  • Reporting a safety violation
  • Testifying against an employer
  • Participating in an investigation against an employer
  • Complaining about being subjected to any form of discrimination in the workplace
  • Complaining about coworkers being subjected to any form of discrimination in the workplace
  • Requesting reasonable accommodation
  • Requesting and going on family/medical leave

As an employer, you have to always remember that your employees have many rights in the workplace established by both state and federal laws. When you infringe these rights, you are putting yourself at risk of retaliation claims-which could cost you and your company a lot of trouble. For more information about the different elements of workplace retaliation claims, do not hesitate to seek legal assistance as soon as possible.

How Have Past Claims Influenced the Popularity of Retaliation Claims?

It is widely known that the outcomes of cases can have an impact on future cases-outcomes can even change laws. Consider the following example cases and their effect on employment law and, subsequently, retaliation claims:

  • Robinson v. Shell Oil Co. This case resulted in an expansion of the parties covered against retaliation. Specifically, this case changed employees under the Civil Rights Act (Title VII) to include former employees. This allowed former employees to pursue retaliation claims even after losing their jobs.
  • Kasten v. Saint-Gobain Performance Plastics. This case resulted in an expansion of coverage for retaliation to include employees who make oral complaints to their employers.
  • Burlington Northern & Santa Fe Railway v. White. This case resulted in a lowered standard for proving and establishing retaliation in the workplace under Title VII of the Civil Rights Act.

What Laws Have Passed and Resulted In Changes to Retaliation Claims?

As exemplified above, many cases have resulted in changes to the parties that are protected from retaliation, as well as the protected actions/retaliatory actions that could be grounds for a claim. In addition to specific cases, such as those mentioned above, there have also been many laws that have passed in regards to retaliation claims. These laws have expanded the damages available for recovery and continued to broaden the scope of parties protected from retaliation. These laws include some of the following:

  • The Whistleblower Protection Enhancement Act of 2012
  • The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010
  • The Sarbanes-Oxley Act of 2002
  • The Civil Rights Act of 1991

These laws, together with the case outcomes previously discussed, have resulted in a wider scope of employees being protected from retaliation in the workplace than ever before.

How Is Human Nature Relevant To Retaliation Claims?

Based on the history of retaliation claims, when these claims go to trial, jurors are more likely to take the side of the claimants. Why? It is human nature to want to retaliate against someone who makes an attacking or accusing statements about you, whether it is true or not. In other words, it is likely for an employer to remain subjective with employees who participate in protected actions-especially if the participation in the protected action resulted in the employer feeling attacked or betrayed. Because of the factor of human nature, the possibility of retaliation claims being successful is always likely.

What Could Employers Do To Reduce The Risk of Retaliation Claims?

Retaliation claims are consistently successful. For employers, retaliation claims could represent burdens from which companies could never recover. Retaliation claims could severely threaten your company; therefore, you should take action to prevent these claims-and maintain a healthy workplace for all of your employees. In general, employers should follow the following recommendations:

  • Employ policies that prohibit illegal retaliation in the workplace. If you do not already have one, implement a policy that clearly prohibits retaliation. In addition to prohibiting retaliation, the policy should also encourage employees to come forward without having to fear potential negative consequences.
  • Provide your staff with training. You should provide your staff with training regarding how to respond when claims arise, focusing on treating claimants fairly to avoid any form of retaliation. Your staff should know how to handle themselves to avoid retaliating against employees.
  • Engage with claimants. Employers often ignore, isolate, or marginalize the employees that make claims. This can potentially worsen the situation. Instead, employers should actively engage claimants. Tell them about your anti-retaliation policies and how they are protected. Listen to their concerns and plan to take action. Always document any conversations.
  • Take action to protect yourself and your company. Consider taking action to avoid or end retaliation, protecting you and your company from potential lawsuits. You could make many changes, such as restructuring, that would either reduce or eradicate the existing risks of retaliation. This could include changing work schedules or work teams, for example.
  • Review all employment actions surrounding the claimant. Making any employment decisions surrounding a claimant could be very risky due to the possibility that such decisions could be considered retaliatory. If any employment actions must be taken, it is your duty to ensure that they are fair and accurate.

California Labor Law Employment Attorneys Group

Without a doubt, it could be very difficult for employers to protect themselves from retaliation claims – especially if he or she does not have the appropriate understanding of the laws that apply. As an employer, it is your responsibility to remain up to date with employment laws. Doing so allows you to provide your employees with a positive work experience while also giving you the tools to protect your company from such claims. At California Labor Law Employment Attorneys Group, we understand that sometimes it could be difficult to understand employment laws. Because of that, we aim to invite all employers to meet with our employment experts to discuss employment laws in terms that are simple to understand. If you would like to meet with our experts to learn more about retaliation claims and the steps employers could take to avoid them entirely or reduce the risk of them occurring, do not hesitate to contact California Labor Law Employment Attorneys Group at your earliest convenience.

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