Claims of retaliation have become the biggest risk for organizations of all sizes.
Retaliation claims have increased dramatically in the last few years, creating the most significant legal risk to companies today.
Retaliation claims have surpassed race discrimination as the most common type of charge filed with the U.S. Equal Employment Opportunity Commission (EEOC).
There are 3 primary reasons why we are seeing this explosion in retaliation-related discrimination:
1. Retaliation is relatively easy to establish, especially when compared to the burden of proof in race and sex discrimination cases.
2. Jurors tend to look more closely at the evidence in sex and race discrimination cases, but can relate easier to allegations of retaliation.
3. Retaliation claims have skyrocketed since the 2006 Supreme Court ruling in Burlington Northern v. White, which lowered the standard of proof and made it easier for employees to prove their claims.
Additionally, other Supreme Court decisions have made it easier to file retaliation claims for such issues as:
**Participating as a witness in a company investigation of
harassment or discrimination.
**Making a claim of discrimination or harassment.
**Being disciplined or terminated because of a complaint
of discrimination filed by an employee’s relative.
Here are the takeaways from this material.
The courts are looking at retaliation claims in a different light than they have in the past.
The courts are focusing not only on the protected activity of employees with complaints (i.e., both written and verbal), but also those people associated with the employees as well as anyone involved in a complaint such as a witness.
It is imperative that companies provide managers with the
*To interact with complaining employees without taking the complaint personally and
*To make business decisions based on objective business data rather than subjective criteria that can give the appearance of retaliation.
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