Retaliation is the name given to the act of punishing or terminating a person who has complained of unlawful employment practices, and they are perhaps the most difficult claims for employers to defend. Because of this, retaliation claims are particularly attractive to employees who feel their rights have been violated. Although they are often brought in conjunction with discrimination claims, they often succeed even though the discrimination claim fails. As an employer, it is important to keep abreast of practices that may support an employee’s retaliation claim and take steps to avoid them.
An employee proves retaliation if he can show:
- That he engaged in legally protected conduct;
- That he suffered an adverse employment action; and
- There was a link between the adverse employment action and the legally protected conduct.
It is important to note that the “unlawful employment practice” to which the employee is opposed does not necessarily have to be unlawful in order for a retaliation claim to succeed. Instead, the employee only needs to have a reasonable, good faith belief in the illegality of the conduct. Because of this, it is particularly important to educate your employees on lawful and unlawful employment practices. Consider outlining the legal bases for your practices in your employee handbook.
The link between the adverse employment action and the legally protected conduct can be inferred if the two actions are close in time and there is no independent explanation offered by the employer. In order to avoid this trap, employers should keep records of the reasons for any adverse employment action.