Virtually all of the laws that regulate employers prohibit retaliation, which means companies can't take action against an employee who exercises certain rights, opposes unlawful activity or participates as a witness in another employee's claim.
Employees who report illegal activities (the so-called whistle-blowers) and those who file for workers' compensation, serve on juries, complain of violations of the new anti-smoking law, or complain of federal safety violations are all protected from retaliation.
Retaliation claims are especially common in the context of discrimination cases. From 1992 to 2005, the number of retaliation-based charges per year before the U.S. Equal Employment Opportunity Commission more than doubled.
Almost 30 percent of all charges include a claim of retaliation.
An employee doesn't have to be right about the claim of discrimination. He must simply have a good faith belief that he is opposing some illegal action. Opposition to alleged discrimination, however, must be legal and cannot interfere with the work of other employees or the company's business.
Some recent developments make these provisions particularly troublesome for employers.
Before 2006, most courts had held that retaliation was limited to materially adverse changes in the terms and conditions of employment.
In that year, however, the United States Supreme Court broadened the definition of retaliation to include any action by a company that might dissuade an employee from complaining about discrimination.
This year the U.S. Sixth Circuit, which includes federal courts in Tennessee, ruled that relatives and associates of employees who file workplace claims are protected from retaliation. In that case, a man alleged that he was fired after his fiancée filed a gender discrimination claim.
Extreme case is warningIn another particularly dramatic 2008 decision, the Sixth Circuit found that a company could be liable for co-worker retaliation. In that case, a male employee with Anheuser-Busch sexually harassed several female employees over several years. The first woman to complain was transferred to another brewery line.
The next employee who reported sexual harassment had her car set on fire. The employee reported her suspicions to the company about who was responsible for the fire, but the company did not investigate.
The company then received an anonymous letter reporting that the culprit was harassing employees. The letter also reported acts of retaliation, such as slashing the tires of a female worker who threatened to report him for harassment. Finally, a third woman complained of harassment that was witnessed by another worker.
The company finally investigated and fired the offending employee. The man burned down the house of the complaining woman, then shot his girlfriend and himself.
The court held that the company could be liable for a co-worker's acts of retaliation if (1) the conduct is severe enough to dissuade a worker from complaining of discrimination, (2) supervisors or members of management have actual or constructive knowledge of the retaliatory behavior, and (3) supervisors or members of management have condoned retaliation or have responded to complaints of retaliation so inadequately as to show indifference under the circumstances.
Although the Anheuser-Busch case was extreme, it illustrates the proposition that companies must respond appropriately to complaints by employees, especially complaints of retaliation.
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