RETALIATION

Retaliation – A form of adverse action taken by an employer against an employee

In plain language: Retaliation occurs when an employer punishes an employee—often subtly or indirectly—for engaging in a "protected activity." For instance, an employee reports sexual harassment, and then their employer changes their work schedule in a way that is detrimental to them. This would be considered retaliation. 

Technical definition: Retaliation in the context of employment law refers to a type of 'adverse employment action' taken by an employer against an employee who has engaged in a 'protected activity' such as reporting discrimination or participating in an investigation of such allegations. Retaliation typically surfaces in forms of employment retaliation such as demotions, unfavorable shift changes, salary reduction, or other negative job action. It's critical to remember that retaliation claims often exist independently of the legitimacy of the initial reported concern. 

Retaliation in the workplace can lead to a hostile work environment, marked by threatening behavior or adverse actions. It's a serious issue with potential legal ramifications under employment discrimination laws. 

TL;DR

Retaliation is punishment from an employer for engaging in a protected activity. 

Understanding retaliation matters because it can result in serious legal and financial consequences. 

A common pitfall is considering only tangible adverse employment actions as retaliatory. 

A best practice for agencies is to educate clients on employment practices liability insurance (EPLI), specifically retaliation clause. 

What Is Retaliation in Insurance?

Retaliation refers to adverse employment actions taken by an employer in response to an employee's protected activity. These activities can include anything that the law defines as 'protected', such as filing an internal complaint or cooperating in a workplace investigation of unlawful discrimination or harassment claims. 

Retaliation is commonly associated with Employment Practices Liability Insurance (EPLI). EPLI provides coverage to employers against claims made by employees alleging discrimination (based on sex, race, age, or disability, for example), wrongful termination, sexual harassment, and retaliation. 

Retaliation is not limited to 'tangible employment action'. Minor changes in employment terms or conditions that would deter a reasonable employee from complaining about discrimination can constitute retaliation. Understanding retaliation claims requires a nuanced outlook due to the broad spectrum of behavior that can potentially qualify as retaliatory. 

Key Related Terms to Know

Adverse Employment Action – Any action taken by an employer that negatively affects an employee's job, such as pay cuts or demotions. 

Protected Activity – In the context of retaliation, a protected activity refers to actions taken by employees to oppose or report discrimination or harassment. 

Employment Practices Liability Insurance (EPLI) – Insurance coverage that protects employers from potential employee-based claims, including those of retaliation. 

Hostile Work Environment – When an employee can't perform their work properly due to the negative behaviors, such as bullying or intimidation, of their colleagues or superiors. 

Protected Opposition – Actions taken by employees to oppose discriminatory practices at their workplace. 

Common Questions About Retaliation

What types of actions can be considered retaliation? 

Retaliation can take many forms in the workplace. It can be anything from a negative performance review or interference with job performance to wage cuts, demotions, job or shift reassignments, and even more severe actions like termination. Even subtle and indirect actions can be construed as retaliation if they create a hostile work environment. 

How does one prove retaliation in a workplace? 

Proving retaliation involves establishing a clear causal connection between the adverse employment action taken and the protected activity performed. Temporal proximity between the protected activity and the retaliatory action often serves as strong evidence. Document retention and careful record-keeping play a crucial role in establishing such cases. 

Can retaliation claims exist independently of the merits of the initial claim? 

Yes, retaliation claims can exist independently of whether the initial claim of discrimination or harassment was valid. If an employer takes any adverse employment action against the employee who made the claim, they can still be subjected to a retaliation claim, regardless of the legitimacy of the initial claim. 

What measures can be taken against retaliation? 

Implementing a strong retaliation prevention policy, educating employees and employers about what constitutes retaliation, maintaining stringent complaint procedure, and ensuring a fair and thorough investigation of all claims is the first line of defense against retaliation. 

Retaliation vs. Hostile Work Environment

The core distinction between retaliation and a hostile work environment is in the intent and behavior. While retaliation is a definitive action taken due to an employee's protected activity, a hostile work environment can exist due to persistent and unwelcome discriminatory behavior, with or without a direct trigger.  

Real Claim Examples Involving Retaliation

Scenario 1: A manager was accused by an employee of a large firm for sexual harassment. After the incident was reported, the employee suffered a salary cut, which he attributed to his complaint. He filed a retaliation claim. The retaliation claim stood, and the company incurred significant legal expenses and compensatory damages. 

Scenario 2: A customer service representative at a call center requested a reasonable accommodation due to her disability. When her requests were repeatedly denied, she filed a complaint with the EEOC. Subsequently, her shifts were changed and duties increased, leading her to file an ADA retaliation complaint. 

Scenario 3: An employee who had given evidence in an investigation into his manager's racial discrimination was suddenly transferred to a different department with reduced benefits. Even though the initial discrimination claim was eventually dismissed, a separate retaliation claim was made.

Limitations and Common Mistakes

Assuming retaliation requires a drastic action such as job termination. 

Misinterpreting any negative change after reporting an incident as retaliation. 

Neglecting retaliation claims if the original complaint of discrimination or harassment is invalid. 

Not maintaining a safe and trusting environment for employees to report instances without fear of retaliation. 

How to Explain Retaliation to Clients

Personal Lines client "Think of retaliation as an unfair reaction from your employer due to you standing up for your rights at work. If you reported or opposed something wrong at your workplace and face negative consequences for that, it could be retaliation." 

Small Business owner "Retaliation is when an employer punishes an employee for reporting or standing against unlawful activities in the workplace. It can take many forms, like reduced wages, or unfavorable shifts. It's crucial to have policies and a safe space for employees to raise their concerns without fear." 

CFO or Risk Manager "Retaliation claims represent a significant risk to our company. They occur when an employee faces negative repercussions, like demotion or salary cuts, for reporting misconduct or illegal activities. We need to have written complaint procedures, thorough investigations, and fair treatment across the board to mitigate this risk."