Employers Need To Be Aware Of Potential Retaliation Claims

Most employers are well aware that they cannot make employment decisions based upon a person’s race, disability, sex, age, national origin, religion and other classes protected under federal, state or local law. However, many employers seem to run afoul of the employment discrimination laws not because they engage in discriminatory conduct based upon a person’s membership in a protected class, but rather by retaliating against the individual for raising a possible discrimination issue.  In fact, the U.S. Equal Employment Opportunity Commission recently announced that in over 45% of the workplace discrimination charges it received in 2016 involved, at least in part, a claim of retaliation was raised by the complaining party.  https://www.eeoc.gov/eeoc/newsroom/release/1-18-17a.cfm

Therefore, it is extremely important that in addition to immediately commencing an investigation into any discrimination allegation, the employer must take appropriate steps to safeguard the complaining party from retaliation. The employer’s personnel policies should make clear that retaliation will not be tolerated and this should be reiterated to all individuals involved in the alleged discrimination. Generally, taking any adverse action against a complaining individual is not a good idea.  However, for reasons totally unrelated to the fact that the employee raised a complaint of discrimination, it is sometimes necessary to terminate an employee who has complained about discrimination.  This decision should only be made after consultation with competent legal guidance, as the employer will need to demonstrate that the adverse employment decision was not motivated by retaliation or discrimination.   The closer the “temporal proximity” is between the complaint of discrimination and the adverse employment action, the harder it will be for the employer to satisfy its burden.

Again, terminating an employee after he/she has raised a complaint of discrimination is generally ill-advised. It is important to remember that even if the underlying complaint of discrimination turns out to unsubstantiated, the retaliation claim will not disappear and will have to be addressed.

For more information on retaliation claims, please contact Scott A. Mirsky at (301) 656-7603 or samirsky@paleyrothman.com.
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