Retaliation is the most common employment-related claim filed with the U.S. Equal Employment Opportunity Commission and often accompanies discrimination or harassment complaints.
For employers, these claims can be more difficult to defend than the underlying allegation because courts interpret retaliation broadly and juries closely scrutinize timing and intent. As a result, these cases can be costly to defend even if the complaint is found to be meritless.
At its core, retaliation occurs when an employer takes an adverse employment action against a worker because that individual engaged in protected activity. That action may include termination, demotion, suspension, denial of promotion, reduced hours or reassignment to a less desirable shift.
It can also involve more subtle conduct such as heightened scrutiny, exclusion from meetings or workplace ostracism if it would dissuade a reasonable person from raising concerns.
What qualifies as protected activity
Federal and state laws protect employees who speak up about workplace issues. These protections apply even if the underlying complaint ultimately proves unsubstantiated as long as it was made in good faith.
Retaliation protections appear in numerous federal statutes, each with its own procedures and remedies, including:
- Title VII of the Civil Rights Act of 1964,
- The Americans with Disabilities Act,
- The Age Discrimination in Employment Act, and
- Whistleblower provisions enforced by OSHA.
Examples of protected activity include:
- Filing or threatening to file a discrimination charge.
- Reporting harassment to a supervisor or human resources.
- Participating in an internal investigation or testifying in a proceeding.
- Requesting a reasonable accommodation for a disability or religious practice.
- Taking protected leave under the Family and Medical Leave Act.
- Reporting a workplace injury or filing a workers' compensation claim.
- Raising workplace safety concerns under the Occupational Safety and Health Act.
- Blowing the whistle on fraud or regulatory violations.
Why retaliation claims are so common
Employment attorneys often add retaliation to discrimination lawsuits because the standard for proving it can be less demanding.
Courts may view close timing between a complaint and an adverse action as evidence of a retaliatory motive. Inconsistent explanations for discipline, weak documentation or emotional language in personnel files can also undermine an employer’s defense.
These cases are costly. Even if an employer ultimately prevails, defense costs can reach tens or even hundreds of thousands of dollars. If the employee wins, damages may include back pay, front pay, reinstatement, compensatory and punitive damages and attorneys' fees.
Beyond legal costs, retaliation claims can damage morale, increase turnover and attract regulatory scrutiny.
How employers can reduce their risk
Business owners and HR leaders can take proactive steps to prevent retaliation and strengthen their defense if a claim arises:
- Publish and regularly communicate a clear anti-retaliation policy.
- Train managers and supervisors on what constitutes protected activity and prohibited conduct.
- Promptly investigate all complaints and document the process thoroughly.
- Keep knowledge of complaints on a need-to-know basis.
- Separate the complainant and accused in a neutral, nonpunitive manner.
- Conduct follow-up check-ins after investigations close.
- Ensure discipline is consistent with past practice and supported by objective metrics.
- Review the timing of employment decisions if they occur after a worker raises issues.
- Require multiple levels of review before disciplining someone who has recently complained for unrelated reasons.
- Use timely documentation that is factual and free of speculation or sarcasm.
- Implement a litigation hold if a charge is filed and preserve relevant records.
Under OSHA’s whistleblower provisions, for example, employers must provide a safe reporting channel for safety concerns and ensure workers can report hazards without fear of reprisal. Employers that encourage reporting and respond constructively can reduce legal exposure.
The insurance backstop
Even the most diligent employer can face a retaliation allegation. Employment Practices Liability Insurance or EPLI can help cover the costs of defending against claims of retaliation, discrimination, harassment and other employment-related actions.
Policies typically cover legal defense expenses, settlements and judgments, subject to their terms and exclusions.
Additionally, clear policies, consistent enforcement and strong documentation practices are essential. Pairing these efforts with appropriate insurance coverage can help protect both the organization and its bottom line.
