In 2013, retaliation claims made up 41 percent of the discrimination complaints filed with the U.S. Equal Employment Opportunity Commission (EEOC). Retaliation claims are on the rise while other types of discrimination claims have leveled off or even dropped.
Retaliation occurs when an employee complains about workplace discrimination and is then targeted for harsher treatment by the employer. Harsher treatment includes, but are not limited to, refusal to hire, demotion, refusal to promote, harassment, negative performance evaluations, reprimands, termination or a change in hours. The most frequent form of retaliation is disciplinary action or termination.
For example, an employee has performed at a satisfactory level or higher for quite some time. The employee complains to the employer about workplace discrimination, for instance, sexual harassment. Shortly thereafter, the employee is written-up, given unsatisfactory job performance evaluations, or terminated.
A retaliation claim is a separate claim from the underlying discrimination claim. In a lawsuit, a plaintiff can win a retaliation claim while losing the underlying discrimination claim. In general, retaliation claims are easier to prove than discrimination claims.
The Supreme Court expanded the scope of retaliation in Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53 (2006) (“a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’”)
To establish a prima facie claim for retaliation, a plaintiff must show:
- they engaged in protected activity;
- the defendant took action that would be “materially adverse to a reasonable employee or job applicant”; and,
- there is a causal connection between the protected activity and the asserted adverse action.
Materially adverse means harmful enough to “dissuade a reasonable worker from making or supporting a charge of discrimination.” Burlington, 548 U.S. 68.
Bryan A. Chapman, Esquire