Retaliation: Are You Sure You “Know It When You See It”?

The Yale Club of New York50 Vanderbilt Avenue
New York, NY 10017

Presented by Epstein Becker Green Attorneys:
Ronald M. Green - Introduction
Kenneth J. Kelly
John Houston Pope
Susan Gross Sholinsky

When it comes to the unlawful activity known as "retaliation," many employers may not be able to define it, but they believe they "know it when they see it."

Unfortunately, new data from the EEOC indicate that many employers may not be as adept at identifying retaliation as they may think. And if you're unsure what constitutes retaliation under the law — if you can't "see it" — retaliation becomes all the more difficult to prevent.

Retaliation: The New Leader of the Pack

The EEOC recently announced that it received more than 36, 250 retaliation charges in Fiscal Year 2010. These claims accounted for 36.3% of all charges lodged with the agency, and made retaliation the most frequently filed charge for the first time in the EEOC's 45-year history.

But, while this development is disturbing, it is not all that surprising.

The Roberts Court Has Expanded Employees' Protection against Retaliation in Every Retaliation Case It Has Decided

Since the Supreme Court significantly expanded the definition of retaliation in its 2006 decision in the Burlington Northern case, the number of retaliation charges filed annually with the EEOC has increased roughly 70%. And just a few weeks ago, the Court widened retaliation's umbrella still further, ruling that the fiancé of an employee who had complained about discrimination was himself protected against retaliation, even though he personally had not engaged in any protected activity.

Dozens of Federal Laws — and Hundreds More State Laws — Protect Complainers and Whistleblowers from Retaliation

In addition to the federal antidiscrimination laws — Title VII, ADEA, ADA and the like — numerous other laws, from Sarbanes-Oxley and the new Dodd-Frank Financial Reform law, to OSHA, FLSA and FMLA, protect employees from retaliation for complaining about work-related matters or alleged unlawful company activity. Moreover, most states have their own versions of many of these laws, plus prohibitions on retaliation/whistleblowing on such state-regulated matters as Workers' Compensation.

It's Time to Get Pro-active in Preventing Retaliation

This morning briefing will provide you with the information and strategies you need to protect your company from becoming an EEOC statistic or Supreme Court headline. Topics to be covered include:

  • Nailing down the definition of unlawful retaliation: In these times of aggressive agency enforcement and increased litigation, "I know it when I see it" is not a strategy for success. Indeed, you may be surprised at the kinds of actions that are considered "retaliation."
    • The wide scope of conduct that is protected under the various anti-retaliation/whistleblower laws; and
    • The extent to which such laws protect an employee who is not the actual complainer or whistleblower.
  • Why the number of retaliation/whistleblower claims is soaring:
    • Why courts are reluctant to dismiss these claims;
    • Why employees are likelier to prevail on a retaliation/whistleblower claim than, for example, on a discrimination claim; and
    • How employees use retaliation/whistleblower claims as a form of "job security."
  • Developing the policies, procedures and training programs that most effectively minimize the risk of facing a retaliation claim - and maximize the chances of winning a case if one is brought. Virtually all incidents of retaliation are avoidable if an employer has the right practices in place and conscientiously enforces them.

    If you have questions about this briefing, please contact Christine Eschenauer, (212) 351-4668, or email [email protected].

Epstein Becker Green is an approved provider of New York Continuing Legal Education (CLE) credit. This seminar is approved for 2.0 hours of credit in Professional Practice, and is transitional and appropriate for both newly admitted and experienced attorneys.

Epstein Becker Green is an approved service provider for New Jersey CLE. This program has been approved by the Board on Continuing Legal Education of the Supreme Court of New Jersey for 2 hours of total CLE credit.