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What are the basics of retaliation liability?

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in Discrimination and Harassment,Employment Law,Firing,Hiring

Q. We keep hearing that retaliation can be a bigger lawsuit worry for employers than even discrimination or harassment. What kinds of employment laws impose retaliation liability?

A. You are right to be worried about retaliation. It is often difficult for an employee to prove that discrimination actually occurred. However, it is relatively easy for the employee to establish an initial case for retaliation. In fact, the number of claims the EEOC receives alleging retaliation has increased substantially in the past decade, outpacing race, gender and all other kinds of discrimination charges.

Most state and federal anti-discrimination laws make it illegal to fire, demote, harass or otherwise retaliate against applicants or employees because they:

  • Filed a charge of discrimination
  • Complained to their employer about discrimination on the job
  • Participated in an employment investigation or lawsuit (among other kinds of protected activity).

Those laws generally prohibit retaliation when it comes to any major aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training and any other term or condition of employment. Note: Petty slights and annoyances aren’t considered retaliatory.

Even an employee who has a close association with another employee who has engaged in protected activity is often protected. For example, if a married couple is employed by the same company, the EEOC says it would be illegal to terminate one spouse because the other participated in employment discrimination litigation. None­the­less, merely filing a complaint for retaliation or opposing discrimination would not excuse them from continuing to perform their jobs satisfactorily or following all legitimate workplace rules.

To minimize problems, make sure your anti-harassment policy covers retaliation. Train your managers to understand the ways in which a claim can arise.

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