Home / HR Courses / Employment Law 101 / Discrimination / Retaliation
Course: Employment Law 101
Module: Discrimination
Next we're gonna talk about the impact of retaliation in the workplace. And to do this, we're going to look at some statistics. We're going to look at the EEOC's statistics to see how prevalent retaliation is in the workplace.
Since 2007 to 2014, retaliation claims have increased 17.4%. It's clearly taking an upward trajectory in terms of the number of claims employees are making that they're being retaliated against an organization. I really want you to think about this because the way that retaliation works is it's a separate and distinct cause of action from discrimination. So, if you have an employee who alleges they were discriminated against because of their religion or their gender or their race or they were sexually harassed and there's no basis for it. There's no valid reason for that accusation. But the employee makes that allegation and files a charge of discrimination. And when they file that charge of discrimination, one of the managers decides to start treating that employee differently in the workplace. Perhaps giving him more unpleasant assignments or moving her to a more physically demanding position or changing the schedules so that it's not as comfortable for her or family life or his family life. Those types of decisions, if they are adverse employment decisions because she engaged in a protected activity, and therefore the cause of that adverse decision was engaging in the protected activity, that is a whole separate cause of action for discrimination. So if you have an employee that charged a baseless claim of discrimination. And then we react in the workplace and then they file another charge of retaliation, which clearly from this statistic, more plaintiff's attorneys are recommending, than even if the harassment or discrimination claim had zero basis and would have been dismissed totally, the action will survive because the retaliation claim now exists and it creates another whole set of liability and burden for the business. So it's real important that business understand this.
And let me put into perspective the idea of retaliation in the workplace compared to other types of discrimination. And let you see it this way. This is the EEOC statistics except instead of just showing you retaliation we're gonna show you all of them by category. And so we'll start with race. Clearly, you understand that so much of the litigation that deals with discrimination in the workplace has been based upon race in our history. And this number is huge, it's one of the highest classifications of protected categories in terms of volume of cases. There is next to that would be sex discrimination. So these two have been, and I think most of us intuitively think of, as the major areas of discrimination. Those are followed by things like age, and national origin, and religion. And all of these have continued to increase over time.
So if I were to run the statistics longer and go back say in the 1990s, you will see that they are all going straight up like that.
They're all increasing significantly. This is just a snippet of that long history and you can see that they generally are pretty high.
And certainly the numbers from 2005 are higher than the number from 2014. Where's retaliation? Here it is. In red there. And if you'll notice in 2005, retaliation was less than the number of complaints about both race and sex discrimination but that that passed 2006 sex discrimination and in 2011 even race discrimination was surpassed by the number of charges of retaliation.
So now retaliation is the number one cause of action in the EEOC. Huge, huge training opportunity for businesses to mitigate and to avoid liability, in terms of managerial conduct. So it's a major area of training that businesses need to undertake. Okay, going forward, we're going to start looking at and defining retaliation. We're gonna look at a number of Supreme Court cases and talk about some facts to kind of give you an idea of what is and is not permissible in the workplace with regards to retaliation.
Mark Addington
Mark A. Addington, Esq. advises and advocates on behalf of businesses concerning Labor & Employment Law, Business Regulatory Compliance, Restrictive Covenants (Non-Competition, Non-Solicitation, and Confidentiality), Wage & Hour, Privacy, Technology,...
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The Economic Realities Test
The IRS Independent Contractor Test
Module 3 0/14
Discrimination Overview
Retaliation in the Workplace Defined
Associational Discrimination and Scope of Retaliation
Scope of Supervisor Liability and Standard of Proof
Discrimination Analysis under Title VII
Affirmative Action, Sex Discrimination & Retaliation
Pregnancy Discrimination Act
Disability Discrimination - Part I
Disability Discrimination - Part II
EEOC Enforcement
Exempt from Overtime
Compensable Time
Permissible Deductions
Workplace Privacy
Legal Framework of Employee Privacy