News & Insights

A recent report issued by the Equal Employment Opportunity Commission shows that retaliation claims are the largest number of claims that are brought to the EEOC for consideration. Sex discrimination claims rank second and disability discrimination claims rank third, but for the second year, retaliation claims are the most prevalent claims that are brought to the EEOC. 

Retaliation claims arise when an employer retaliates against an employee by taking some type of adverse employment action allegedly because the employee complained about a discriminatory practice or assisted someone else in complaining about a discriminatory practice. The difficulty with retaliation claims is that often an employee has alleged some type of discrimination that is not proven but then alleges the employer retaliated against the employee because of the complaint having been brought. In a sense, employees try to claim they have a “protected status” because they raised a complaint about discrimination and now the employer cannot take action against them because they complained. This is not true of course; however employers have to be very careful because they will often face a retaliation claim when they take adverse employment action against someone who had previously complained about discriminatory working conditions or discriminatory conduct. These types of claims often arise in sexual harassment scenarios where an employee has complained of harassment that actually did not occur or was not so pervasive as to constitute harassment but then the employee thinks they have been retaliated against if any type of disciplinary action is taken against them. 

The EEOC is also very interested in pursuing retaliation claims against an employer because they do not want any employee who has objected to conduct to be retaliated against by the employer. As a result, the EEOC is very aggressive in pursuing retaliation claims and also is very likely to assume that retaliation has occurred when a complaint is brought to the attention of the EEOC.

Employers must be very careful when taking disciplinary action against an employee who has complained about behavior in the workplace. Employers should not feel constrained from taking disciplinary action but must be able to show that the disciplinary action is based upon performance or conduct and not based upon any suggestion of retaliation against the employee for having raised a complaint in the workplace.