Addressing Employment-Related Retaliation Claims

Illegal retaliation occurs when a company takes a punitive or adverse action against a person (usually an employee) in response to activity protected under state or federal statute. Most retaliation provisions are based on the theory that employees or former employees must be allowed to make claims, participate in internal or outside investigations and hearings, or complain of an illegal practice, without recrimination. Most federal and state employment-related laws prohibit retaliation, and hundreds of statutes unrelated to employment include anti-retaliation provisions. 

The Supreme Court recently said that even ex-employees can claim illegal retaliation, generally relating to a job reference or other post-employment behavior by the company.

To win an action for illegal retaliation, a complaining employee has to show that he or she engaged in a protected activity, the employer was aware of it, and then took an adverse action in response. The employer would attempt to show a legitimate business decision for its actions, and the employee would then try to prove the business decision was a pretext for discrimination or harassment.

The author provides a list of measures a company can take to protect against retaliation claims. She suggests having a formal anti-retaliation policy and emphasizing it; taking all complaints seriously and investigating them immediately; telling every person involved in an investigation that retaliation will not be tolerated; and keeping good documentation, particularly of any adverse actions against an employee who has complained of an illegal activity or action.