JKD Law Blawg

Legal Insights For HR & Business Professionals

Retaliation Claims: The Great Under-Appreciated Risk

One of the great “under-appreciated” legal risks that employers face today is retaliation claims.  Almost every major employment law contains a provision that provides employees with retaliation protections.  This means that it is illegal for employers to retaliate against employees who exercise their rights under a particular law.

Some examples of the issues which can generate retaliation claims include:

  • Discrimination and harassment complaints
  • Family and medical leaves
  • Workplace safety issues
  • Wage and hour issues
  • Union activities (concerted activities)


There are three basic elements to a retaliation claim:

1. The employee engages in a “protected activity”
under a particular law.

For example, under employment discrimination laws employees have the
right to make complaints of sex or race discrimination (or in regards to any of the other protected classes).  When employees make such complaints, they have engaged in a “protected activity.”  Protected activities usually come in the form of:

  • Making a complaint
  • Acting as a witness for someone making a complaint
  • Opposing an unlawful practice
  • Exercising a right


2. The employee suffers an “adverse employment

The next part of the claim is that the employee must “suffer a
harm.”  Typically, this comes in the form of a disciplinary action, demotion, termination or some other penalizing action that is fairly tangible or defined.  However, in 2006 the U.S. Supreme Court ruled that the employer’s action need only be “materially adverse” such that a “reasonable employee” (i.e., an average or “typical” employee) would be dissuaded from pursuing a claim.  The Supreme Court’s standard potentially opens the door for a broader interpretation of the term “adverse action.”

3. There is a “causal link” between the employee engaging in a protected activity and the adverse employment action.

Lastly, the existence of any link between the protected activity and the harm suffered by the employee is closely examined.  The following factors are often considered:

  • The amount of time between the protected activity and the harm (the less time, the greater appearance of a possible link—this is referred to as “temporal proximity”);
  • The employer’s explanation for why the adverse action occurred;
  • Evidence (or a lack thereof) of a plausible non-retaliatory reason for the adverse action;
  • Past practices in similar situations when a protected activity was not involved (consistency).


It is very important to rememberthat the employee’s complaint (the protected  activity) does not have to be valid in order for retaliation protections to apply.

Managing retaliation risks is probably one of the most difficult challenges employers face.  Retaliation claims are very high-risk because:

  • Relationships  between the parties after a complaint has been made are usually strained.  The human tendancy to strike back is a common emotion!
  • The risk of retalation can continue for a long period of time;
  • Retaliation claims can be factually easier to prove than some other types of claims.

Here’s an important tip: if an employee approaches a manager and complains in some form that their legal rights have been violated, the situation needs to be carefully reviewed and monitored in order to minimize the risk of retaliation.

This article should not be construed as legal advice.

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