Retaliation claims against employers soar

When the U.S. Equal Employment Opportunity Commission (EEOC) issued its annual recap press release on Jan. 24, 2012, there was no mistake of its news – fiscal year 2011 was another record breaking year for the EEOC.

Why do the statistics matter?  Because the numbers and types of discrimination charges oftentimes foreshadow workforce trends and enforcement focus of the EEOC in the coming year, trends every employer should be watching to effectively manage its workforce in 2012.

In fiscal year 2011, the EEOC received a record-breaking 99,947 charges of employment discrimination, just slightly up from the 99,922 charges filed in 2010 (another record year, by the way).

Monetary relief for individuals obtained through combined enforcement, mediation and litigation programs reached an all-time high of $455.6 million, a more than $45 million increase from fiscal 2010 and continuing the upward trend of the past three fiscal years.

In 2010, complaints of retaliation proceedings surpassed race discrimination charges, which until that date had been the most frequently filed charge with the EEOC since 1965.

Most notably, the trend continued in 2011, with complaints of retaliation proceedings once again surpassing race discrimination charges, with 37,334 retaliation charges compared to 35,395 race discrimination charges.

In its most fundamental sense, retaliation in the employment context is an adverse action taken against an employee in response to the employee exercising his or her rights under a federal or state employment law. Most federal employment laws prohibit retaliation, such as Title VII, the Americans With Disabilities Act, the Age Discrimination in Employment Act, and the Fair Labor Standards Act. The elements necessary to establish a retaliation claim — protected activity, adverse employment action, connection between the protected activity and the adverse employment action — continue to evolve in the courts and there is a clear trend towards expansion of the protections afforded under the various anti-retaliation protections. In 2011, for example, the U.S. Supreme Court broadened the anti-retaliation protections under Title VII to include third-party victims of retaliation.

There has been much speculation as to the cause of the increase in the number of charges generally and retaliation charges in particular. Some blame the lagging economy in 2011, while others point to the EEOC’s re-focused enforcement agenda.

Whatever the reasons, the conclusions are clear: the EEOC’s pace of enforcement activity shows no signs of fatigue; employee retaliation claims continue to broaden beyond Title VII; and employers should take this time to update their anti-discrimination policies and procedures to avoid potential retaliation claims in 2012.     

Christine Liu McLaughlin is a shareholder in the Labor & Employment Law Practice Group in the Milwaukee office of Godfrey & Kahn S.C. Attorneys at Law.

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