Employers More Likely to Face Retaliation Charges

By: Melanie M. Dunajeski

Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employment discrimination on the basis of race, color, religion, sex or national origin. It also prohibits retaliation against an employee or applicant for either opposing any practice that is unlawful under Title VII or participating in any Title VII proceeding or investigation.

Data released by the EEOC shows that a record 99,947 new charges of discrimination were filed in 2011. For the fifth year in a row, the number of charges of retaliation has risen, and retaliation charges are now more numerous than any other form of charge filed with the EEOC, comprising more than 37% of all charges.  In 2011 there were 37,334 charges of retaliation filed against employers, compared to 35,890 race discrimination charges and 28,534 sex/gender discrimination charges.  While race and sex/gender charges both decreased from 2010 to 2011, retaliation, national origin, religious, and age discrimination charges all increased.

The pattern of increasing retaliation charges has its genesis in the 2006 U.S. Supreme Court Case Burlington Northern v. White which increased the scope of retaliatory action to include any materially adverse action by an employer that might dissuade a reasonable worker from making or supporting a charge of discrimination.

Considering that an employee can prevail on a retaliation charge even if the original complaint of discrimination was without merit, it is more important than ever that employers take steps to  minimize the possibility of retaliation occurring and to prepare for the eventuality of a retaliation charge.  Policies and procedures should be reviewed to make sure that they include non-discrimination and harassment policies that include a strong statement against retaliation. Policies should also contain clearly stated and easy to follow complaint procedures for discrimination, harassment, and retaliation.  Policies should be redistributed to employees annually, and a record kept that the employee has received the policies.  Measures should be taken to ensure prompt, fair and evenhanded handling of employee disciplinary matters, and to ensure that comprehensive and contemporaneous records are made of disciplinary actions.  A uniform policy should be adopted with respect to the information that will be provided in response to requests for references for all former employees.

If you have questions about preventing and responding to charges of discrimination, contact our Labor & Employment Services Group or any of the DSV attorneys with whom you work.