An employee’s claim of retaliation in the workplace used to be considered a “throw in” claim for relief in a complaint that was otherwise mired in underlying claims of discrimination or harassment. Not anymore. Today, retaliation claims often stand front and center on the litigation stage, and are, in fact, more difficult for companies to navigate through.
Anti-retaliation provisions are ubiquitous in the primary employment statutes. A typical provision is the one contained in the Age Discrimination in Employment Act, which generally prohibits discrimination on the basis of age, and the corresponding anti-retaliation provision makes it further unlawful to retaliate against an employee who has opposed age discrimination, made an age discrimination complaint, or “testified, assisted, or participated” in an age discrimination investigation or action. Similar anti-retaliation proscriptions can be found in Title VII of the Civil Rights Act, the Fair Labor Standards Act and the Family and Medical Leave Act, as well as various other state and local laws. In view of the high stakes involved with these types of claims, it is critical for employers to understand the nature and unique issues attendant to retaliation claims, and the best practices for minimizing the likelihood that employers will be on the wrong end of those claims.