Retaliation Claims are the New Race Discrimination Claims

Contributed by Jill Cheskes

Retaliation Claims v. Discrimination ClaimsHistorically speaking, race discrimination claims have been the most frequent type of claim brought before the EEOC year after year.  While the percentage of race claims has remained pretty constant since 1997 (about 36% of all charges filed with the EEOC), the percentage of retaliation claims has risen dramatically from 22.6% in 1997 to 36.3% in 2010 – surpassing the number of race discrimination claims for the first time. 

Retaliation claims, which essentially involve an employee complaining of discrimination and then suffering some sort of adverse action, like a termination, have long been considered more troublesome for employers than straight discrimination claims are.  This is because the underlying claim of discrimination need not be a valid claim at all, the employee need only have a good faith belief that he or she suffered discrimination.  This is not a high hurdle.

Additionally, the Supreme Court made these claims even easier in 2006 when it held that an adverse action is defined as anything that might dissuade a reasonable employee from making a complaint.  Prior to this holding, most courts required that in order for an action by the employer to be “adverse,” the action would have to cause some sort of tangible effect, such as a pay loss.  Today, anything that could dissuade an employee, whether it has a tangible effect on employment or not, could be considered retaliation.  This lower standard has been evident in several cases already.  For example, a case out of Wisconsin found that a situation where an employee was only threatened with discharge, but not actually discharged, suspended or even disciplined, was sufficient to state a claim for retaliation.  Employers beware!