Employers Beware: A Weak Discrimination Complaint Too Often Leads To A Strong Retaliation Claim

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There are many anti-discrimination statutes aimed at protecting employees, such as the Americans with Disabilities Act, the Age Discrimination in Employment Act, and Title VII of the Civil Rights Act of 1964 under federal law and the anti-discrimination provisions of Chapter 151B of the Massachusetts General Laws to name a few. While understanding the nuances and the interplay between federal and state laws can pose challenges, the intention behind these laws is something that all well-meaning employers support. Nevertheless, situations can arise when even the most well-meaning employer may find compliance with the law and the behavior required to avoid a lawsuit both counterintuitive and difficult. One particularly dangerous area for employers can be found in the anti-retaliation language contained in many employment discrimination statutes. This is because employers too often react negatively to the assertion of a claim and consequently turn a weak discrimination case into a strong retaliation claim.

Generally speaking, a retaliation claim consists of three elements: (1) the employee engaged in a protected activity, such as complaining about some form of discrimination or harassment; (2) the employer subjected the employee to an adverse employment action; and (3) there was a causal connection between the employee's protected activity and the adverse employment action. In the context of anti-discrimination statutes, protected activity includes both formal and informal complaints. And the consequences need not arise to the level of termination or demotion to be considered an adverse employment action. In Burlington Northern & Santa Fe Railway Co. v White, the Supreme Court held that an adverse employment action can take much more nuanced forms.

A particularly dangerous situation for employers arises when an employer believes that an employee's complaint lacks merit. Employers are often surprised to learn that even if an employee's claim is proven to lack merit, it is still protected activity if it was made in good faith. This is perilous territory for the employer because the belief that an employee has made a meritless complaint may understandably cause a supervisor or manager to view the employee negatively. Not surprisingly, this leads to situations in which the possibility of a retaliatory employment action, such as a transfer, is entirely plausible. Employers should also be aware that even former employees can be retaliated against, such as when an employer refuses to provide a reference or tells prospective employers that the employee made a meritless discrimination claim.

Over the last eight years the number of retaliation claims has risen steadily. In the context of discrimination claims, there is a greater risk of liability to the employer from a retaliation claim than the conduct originally complained about. As a result, employers must take all discrimination claims seriously, no matter the employer's view of the merits of the claim, and be extremely careful when making any employment decisions that could be seen as adverse by the complaining employee.

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