Employers’ Guide to Reducing the Risk of Retaliation Claims

Retaliation claims are among the most common issues employers face, often arising from misunderstandings, mismanagement, or inadequate policies. In fact, retaliation consistently tops the list of charges filed with the Equal Employment Opportunity Commission (EEOC). Preventing these claims requires more than just compliance with the law—it demands a proactive approach to systems and transparency within your organization. This blog provides actionable steps employers can take to reduce the risk of retaliation claims.

The Root Cause: Understanding Retaliation

Retaliatory Conduct

Retaliation occurs when an employer takes adverse action against an employee for engaging in protected activities. “Protected activities” is a broad category of employee-conduct that is protected by law, such as:

• Filing a discrimination or harassment complaint with the company’s Human Resource department or with a governmental agency, like the EEOC.
• Participating in an investigation or legal proceeding.
• Reporting illegal or unethical behavior (whistleblowing).

Adverse actions can include demotions, terminations, pay cuts, or even subtle behaviors like exclusion from meetings or reduced responsibilities. The key is whether the action would discourage a reasonable person from reporting concerns or otherwise exercising their rights.

Employers must remain vigilant to avoid both intentional and unintentional retaliation. Even well-meaning actions, such as reassigning an employee to a different team to “avoid conflict” could be effectively punitive—or interpreted as such—if not handled transparently.

Protected Activities

Protected activities are employee-conduct which have a basis for, or are supported by, employment regulation. It is not possible to list all protected activities, and the analysis would necessarily turn on the particular facts of each case. However, below is a list of some examples of protected activities:

  Reporting Workplace Discrimination or Harassment

• Relevant Law: Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act (ADA), Age Discrimination in Employment Act (ADEA), etc.
• Employees are protected from retaliation when reporting discrimination or harassment based on race, color, religion, sex, national origin, disability, or age.

  Participating in an Equal Employment Opportunity Commission (EEOC) Investigation

• Relevant Law: Title VII of the Civil Rights Act, Equal Pay Act (EPA), etc.
• Employees are protected from retaliation for cooperating with or providing evidence in EEOC investigations.

  Opposing Unlawful Employment Practices

• Relevant Law: Title VII of the Civil Rights Act.
• Employees cannot be retaliated against for opposing practices they believe to be unlawful, such as discrimination.

  Requesting a Reasonable Accommodation for a Disability

• Relevant Law: Americans with Disabilities Act (ADA).
• Employees are protected from retaliation for requesting reasonable accommodations for disabilities.

  Exercising Rights Under the Pregnancy Discrimination Act

• Relevant Law: Pregnancy Discrimination Act (PDA), Pregnant Workers’ Fairness Act (PWFA), etc.
• Protects employees from retaliation for requesting accommodations related to pregnancy or childbirth.

  Filing or Participating in a Complaint about Wage Violations

• Relevant Law: Fair Labor Standards Act (FLSA), etc.
• Protects employees who complain about unpaid wages, overtime violations, or other wage-related issues.

  Engaging in Union Activities or Collective Bargaining

• Relevant Law: National Labor Relations Act (NLRA).
• Employees have the right to join, form, or assist labor unions and engage in collective bargaining activities without employer retaliation.

  Reporting Workplace Safety Hazards

• Relevant Law: Occupational Safety and Health Act (OSHA).
• Protects employees who report unsafe working conditions or file complaints with OSHA.

  Taking Leave for Medical or Family Reasons

• Relevant Law: Family and Medical Leave Act (FMLA).
• Employees are protected from retaliation for taking job-protected leave for qualifying medical or family reasons.

  Blowing the Whistle on Illegal Activities

• Relevant Law: Whistleblower Protection Act, Sarbanes-Oxley Act (SOX), etc.
• Protects employees who report illegal activities or fraud in their workplace.

  Filing for Workers’ Compensation

• Relevant Law: State Workers’ Compensation Laws.
• Employees cannot be retaliated against for filing a claim for a workplace injury or illness.

  Serving on a Jury or Testifying in Court

• Relevant Law: Jury Systems Improvement Act (JSIA), State Laws, etc.
• Employees are protected from retaliation for fulfilling civic duties like jury service or testifying as a witness.

  Discussing Wages or Workplace Conditions

• Relevant Law: National Labor Relations Act (NLRA).
• Protects employees’ rights to discuss wages, benefits, and working conditions with coworkers.

  Exercising Rights Under the Uniformed Services Employment and Reemployment Rights Act (USERRA)

• Relevant Law: USERRA.
• Protects employees serving in the military from retaliation for taking leave or seeking reemployment after service.

Five Strategies to Reduce the Risk of Retaliation Claims

1. Develop Clear, Enforceable Policies
   Start by creating comprehensive anti-retaliation policies. These should:
   • Explicitly define retaliation and provide examples.
   • Assure employees that reporting concerns will not result in punishment.
   • Outline reporting procedures for concerns about retaliation itself.
   • Regularly update policies to reflect changes in federal, state, and local laws, and ensure they are easily accessible to employees. 
2. Train Managers and Supervisors
   Managers often unintentionally commit retaliatory acts due to a lack of understanding. Training is essential to ensure they:
   • Recognize protected activities and their legal significance.
   • Understand how their actions—such as excluding employees or changing their roles—could be perceived as retaliatory.
   • Respond appropriately to complaints or whistleblowing. 
3. Encourage a Culture of Transparency
   Transparency reduces suspicion and builds trust. Ensure that:
   • Employees feel safe voicing concerns.
   • Changes in roles, duties, or employment status are clearly communicated and supported by objective, documented reasoning. 
4. Document and Investigate Complaints Thoroughly
   When employees report concerns:
   • Promptly document their complaints.
   • Conduct a thorough, unbiased investigation.
   • Keep detailed records of all actions taken in response, including interviews and resolutions.
     Documentation is not just for internal clarity—it can be critical evidence if a claim is brought forward. 
5. Separate Decision-Making from Complaints
   Avoid involving managers directly implicated in a complaint in subsequent employment decisions concerning the complaining employee. This reduces the perception of bias or retaliation.

Conclusion: Building Trust and Compliance

Reducing the risk of retaliation claims isn’t just about avoiding lawsuits; it’s about fostering a workplace where employees feel valued, respected, and safe to voice concerns. By implementing clear policies, providing training, and emphasizing transparency, employers can minimize risks and build a culture of accountability.

If you’re unsure about your current practices or need help navigating a complex situation, consult with a legal professional. A small investment in proactive legal guidance today can save your organization significant challenges in the future. Contact Jimerson Birr today!