According to charge statistics maintained by the EEOC, retaliation charges accounted for more
than 37 percent of all charges filed with the agency in FY2011,
totaling more than 37,300 charges. Retaliation charges accounted
for the largest percent of charges filed with the EEOC (race
discrimination was second, totaling approximately 35,300
charges).Retaliation charges are so popular because employees who
bring retaliation charges have a higher degree of success than
those that bring a regular discrimination charge. First, there is a
lower standard of harm that must be proven for a successful
retaliation lawsuit thanks to the U.S. Supreme Court case, Burlington Northern & Santa Fe Railroad v.
White (2006). Even though a discrimination plaintiff has to
prove that he or she suffered a "materially adverse employment
action," a retaliation plaintiff only needs show that the
employer undertook some conduct that may dissuade him or her from
making or supporting a charge. Second, juries inherently distrust
employers; retaliation (versus discrimination) "makes
However, there are some proactive steps an employer can take
that may help increase the odds of avoiding retaliation
1. Clear and Unambiguous Policy
Retaliation is not permitted
Describes the parameters of inappropriate conduct (as best as
Must be in writing
Includes a reporting and grievance procedure, listing specific
positions to whom the employee can report a claim of
Contains an acknowledgement of receipt
2. Prompt Investigations
Remember that anyone who participates in an investigation is
likely protected from retaliation (not just the employee who makes
Communicate results of the investigation to the grievant
Take effective remedial measures; carefully review ALL
discipline before imposing (ensure that it is consistent with past
3. Train Management
On the policy, in general (ensure everyone understands)
Who is protected from retaliation (participants, complainants,
sometimes persons related to complainant)
What can constitute retaliatory conduct; if in doubt, consult
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