Equal Employment Opportunity Commission (EEOC) statistics show that plaintiffs often succeed with retaliation claims even when the underlying discrimination claim fails. These same figures show that retaliation charges nearly doubled since 1993 even though the total number of employer discrimination charges have decreased. The good news is that retaliation claims can be avoided, and its consequences, when faced with one, can be mitigated with simple strategies. Employers need to proceed with caution because the costs of employer retaliation can be significant since juries can and have awarded record-high punitive damages.

Before learning how to avoid retaliation, you must figure out what it is that you are seeking to prevent. Retaliation is taking an adverse action against an employee, an applicant or a former employee because the employee engaged in "protected activity." Employee complaints (whether verbal, in writing or filed with a government agency) regarding possible discrimination or unfair practices, occurring in the workplace, constitute "protected activities."

Think twice before firing an employee in an attempt to get rid of his or her annoying complaints. You should be aware that employers are especially vulnerable to retaliation claims because the courts have opened the door to a broad range of parties who can bring them. Both current and former employees can assert retaliation claims. Also, the plaintiff does not have to be the party who originally opposed alleged discrimination or unfair practices. A plaintiff bringing a retaliation claim can be closely associated with the person who exercised his or her statutory rights. For example, a plaintiff can assert a retaliation claim on the theory that he lost his job based on his father's protected activity.

Knowledge of the "building blocks" for employee retaliation claims is significant in avoiding these claims and establishing defenses to them. Employees must present evidence that proves the existence of retaliation. In order to establish a case, the employee must prove that he engaged in a "protected activity," the employer took "adverse action" against the employee in response to the "protected activity" and a "causal link" between the protected activity and the adverse action exists. There are two major types of "protected activities," employee opposition to unfair practices or possible discrimination in the workplace, and employee participation in complaints or any type of action against an employer's interests. Acts that almost always constitute "adverse actions" include denial of promotion, refusal to hire, denial of job benefits, demotion, suspension or discharge and unsatisfactory job references. Finally, the courts have recognized certain factors to aid in the determination of whether a "causal link" between the protected activity and the adverse action exists. These factors include whether an employer's action was made in an effort to punish an employee for engaging in a "protected activity" and whether the employer was aware that the employee was engaging in a "protected activity."

When faced with an employee retaliation claim, your business/organization is not doomed. In the event that an employee opposes unfair practices or possible discrimination in the workplace, the employee must have a "reasonable and good faith" belief that employer retaliation exists, the employer must have sufficient notice of the complaint and the manner of the employee's opposition must be reasonable. Thus, if an employee fails to meet one of these requirements, the employer has a valid defense by asserting these failures. Also, you may be able to rebut a "causal link" between an asserted "protected activity" and an employer's alleged "adverse action" by taking the following steps: providing for an independent investigation by an unbiased individual, disclosing negative evaluations of the complaining employee that predate the asserted "protected activity" and disclosing good acts by the employer after the employee engaged in the asserted "protected activity." Finally, in the event that you are unable to successfully assert these defenses, you may present legitimate, non-discriminatory business reasons for your actions as a defense.

Although it is easy to fall prey to retaliation claims, they are equally as easy to avoid. The following are good strategic steps to prevent the retaliatory fire from starting in the first place: include an effective anti-retaliation policy in your employee handbook and discrimination/harassment training and instruct managers on how to prevent co-worker retaliation when they are managing employees who have recently complained about a workplace issue. With an increased awareness of what constitutes employer retaliation, you are certain to carefully monitor management decisions and interactions with these employees. While employer actions affecting terms and conditions of employment (i.e., salary, promotional opportunity) constitute valid grounds for employer retaliation, etiquette issues do not. If you're having a bad day and do not feel like saying "Good Morning" to an employee, slamming a door here and there will not drag you into the courtroom. However, re-think punishments against employees, affecting significant aspects of their employment, the next time you are ticked off by a complaint of some kind. Further, the fact that acts are done "innocently," devoid of any foul motive, does not provide a defense for employers. Greater awareness of how to react after an employee complains will reduce the possibility of an unnecessary lawsuit.

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