How To Prevent Retaliation Claims In The Workplace - ABA YLD 101 Practice Series

By Mario Bordogna, Esq.

Most employers know that federal and state laws exist to generally prohibit any type of retaliation against employees who file discrimination claims, openly oppose discrimination, or who testify or participate in proceedings to enforce discrimination laws. But precisely what type of actions may be considered retaliation under these laws? Although an employer may understand that firing or suspending an employee because he or she filed a discrimination claim would be considered retaliation, that same employer may not realize that a decision to change the same employee's schedule or give him or her a different job assignment could also be considered retaliatory.

This article will talk a little bit about some of the types of things that can lead to a retaliation claim, and more importantly, focus on how those types of claims can be prevented. To set the table for guidance in those areas, however, let's first take a closer look at the law which underlies these causes of action.

The main federal anti discrimination law, Title VII of the Civil Rights Act of 1964, has a specific provision on retaliation. That section provides in relevant part that:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

42 U.S.C. Section 2000e 3(a). Other federal anti discrimination laws, such as the Age Discrimination in Employment Act (ADEA), for example, and many state anti-discrimination laws also have similar provisions. All of these laws are understandably meant to encourage people to report and disclose discriminatory behavior, and to protect them from retaliation when they do.

Traditionally, employers who have retaliated against their employees took some action relating to that employee's job status, whether that action involved a discharge, suspension, demotion or some other discipline. In the world of retaliation, this is generally considered an "adverse employment action", something commonly required (along with some complaint or other protected activity) for most such claims to succeed.

However, what if an employer takes some other type of action against an employee? For instance, what if the employer changes an employee's schedule or shift, or refuses to give an employee a requested day off? What if the employer gives an employee a more undesirable evaluation or puts an employee on an improvement plan? What if the employer denies a request to work from home, or denies a request for certain training? What if an employer gives an employee a more menial work assignment?

Before June 22, 2006, these actions were not always considered to be retaliatory. In many instances, it depended on what part of the country you were in. However, the decision of the United States Supreme Court in Burlington Northern Santa Fe Railroad Company v. White, 126 S. Ct. 2405 (2006), changed all of that. Let's briefly examine what happened in this case.

The Plaintiff, Shelia White, was a railway track laborer who, despite her title, mainly operated a forklift for her employer, Burlington Northern. After complaining of sexual harassment by a supervisor, she was reassigned to do more demanding track labor work. She filed a retaliation complaint with the EEOC over this reassignment. Not long after, she was suspended for insubordination, and filed another retaliation charge. Both actions were at issue in her lawsuit.

Ultimately, the case went all the way up to the United States Supreme Court. There, the high court essentially held that "retaliation" is not just limited to actions in the workplace, but can be any "materially adverse" act which might dissuade a reasonable worker from complaining of discrimination. Id. at 2415.

The Supreme Court's decision in Burlington Northern undoubtedly made it harder for employers to avoid retaliation claims. Why? Because employers across the country make management-type decisions about the shifts, schedules, job duties, work responsibilities, etc. of their employees every day. So what can employers do to ward off these causes of action, or at the very least put themselves in the best position to defend complaints of retaliation following Burlington Northern?

Obviously, once an employee has complained about an unlawful discriminatory practice, employers need to be very careful with respect to any decisions they make in reference to that employee. But any good strategy to prevent a retaliation claim is systemic, and starts well before an employee actually complains of retaliation.

First, it is important that an employer begin at the most fundamental level and develop an anti-retaliation policy. Most employers should already have a policy like this in place, but if not, they should prepare one, indicating that any and all retaliation in the workplace for engaging in conduct protected under the law (making a complaint, participating in an investigation into unlawful conduct, etc.) is strictly prohibited and will be consistently and vigorously disciplined. The policy should set forth a specific and detailed complaint mechanism, just like in a non-discrimination policy, and set forth an avenue to complain to several different people in different levels of the company, so if the complainant's supervisor is the one who retaliated against him or her, that person still has someone to go to on the matter.

In addition, the policy should make reference to anti-retaliations policies in other policies (like a non-discrimination policy), and post it where other policies are. Most importantly, be sure all employees are given a copy of the policy, and document their receipt of the policy.

Any good employment policy is mostly useless for an employer if it fails to train its managerial and supervisory staff on it. Once the policy is developed, employers should train anyone with authority to make decisions on an employee's terms and conditions of employment on the anti-retaliation policy, and should do so annually or as a refresher, depending on the size of your organization. These employees need to be trained on what the policy is as well as how it is applied. In addition, they should be trained on how to avoid acting in a way that could be considered retaliatory.

To avoid doing things that could be considered retaliatory, employers need to be consistent in decision-making and in following their own rules. This is particularly true with regard to discipline. Don't discipline one employee for being late for work 5 times in a month, while letting another employee escape discipline for being similarly tardy. Also be consistent when it comes to other things, too, like how often you evaluate employees, for example. Evaluate the work performance of your comparable employees regularly, and judge them by the same standards. If an employer starts evaluating an employee more frequently without compelling reason, or applying different standards to a particular employee's work performance, it's asking for trouble.

Second, employers need to document their important decisions about the work of their employees - whether decisions about scheduling or shift changes, or decisions about discipline or performance evaluation. When employers fail to properly document these choices, they open themselves up to greater scrutiny. An employer doesn't want to face a retaliation claim and be unable to demonstrate that it made the decision it did with respect to the employee at-issue in the same way it made the decision with respect to 5 other employees in similar circumstances. Proper documentation makes doing this much easier.

After a current employee has engaged in protected activity (for instance, participated in an investigation of alleged discrimination or other wrongful conduct) or filed his or her own retaliation claim, an employer shouldn't feel as if they can no longer discipline that employee, change that employee's schedule or take other action which is a usual part of managing the employees in your organization. It just means you need to be smart in the decisions you do make. Again, be consistent in your decisions and document them, just as you (hopefully) were beforehand.

Certainly, following the Burlington Northern decision, courts are going to examine instances of alleged retaliation on a case-by-case basis to determine whether or not the actions by the employer are sufficiently "material" to have "dissuaded a reasonable worker from complaining". However, being consistent in making employment decisions and keeping good documentation to support the decisions made - good employment practices to adopt anyway - will do a lot to help prevent an employer from being on the wrong side of one of these claims.


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About the Author

Mario R. Bordogna works in Morgantown, West Virginia as an Of Counsel attorney at Steptoe & Johnson, PLLC, where he practices in all areas of labor and employment law. He is licensed to practice in West Virginia and Pennsylvania and can be reached at

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