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Legal Issues in Employment: Retaliation is Discrimination

In order to run a successful business, today’s leaders understand that they must know more than just what their product is and how to sell it. They must know what laws apply to their company’s business, from making employment decisions to managing supply lines, and everything in between. As impossible as it is for one person to manage a company without delegating to employees, it is equally as difficult for one person to understand and ensure compliance with all applicable laws. One area in which specialized assistance is often recommended is that of civil rights. This is because civil rights issues do not arise on a regular basis. Some companies, especially smaller businesses, may go years without facing a civil rights complaint or lawsuit. 

Retaliation Versus Other Protected Classes

One of the reasons that civil rights issues can be so complex is the fact that a business owner, managers, and employees all need to be aware of what might be considered a civil rights violation. Arguably one of the most litigated aspects of civil rights laws is the issue of discriminatory retaliation. Even if a company is vigilant in its civil rights training regimen for all employees, retaliation is often one of the most overlooked protected classes. Race, color, religion, sex, disability, national origin, and age are some of the most well known bases for employees who wish to file a complaint.  Retaliation, however, is in some ways more important for companies to understand in order to avoid being in violation.

This is for one simple reason: Retaliation claims may go forward even if the underlying discrimination claim is found to be invalid. It cannot be repeated enough to employers, management, and staff that even a completely unfounded claim of discrimination may lead to a successful retaliation claim.

What is Retaliation?

The formal definition of retaliation in an employment civil rights setting is “any adverse action taken against an employee because that person engaged in protected activity.”  Here, it is the activity of complaining that has provided the employee with protected class status, and not any inherent trait or characteristic of the individual employee. Protected activity can be formal or informal and can be as simple as an employee complaining to their manager’s supervisor that the manager is treating them unfairly because of their race, national origin, disability, etc. An “adverse action” can be equally as far-reaching so as to include an unjustified negative performance rating or denial of a promotional opportunity.

Oftentimes, employers are not even aware of a retaliation claim until they receive a complaint that an employee filed with a state or federal agency. It does not matter for this type of claim that an employer be notified of the alleged retaliatory action, if that action was taken by an employee with supervisory control over the complaining employee. For example, if a first level manager is named in a discrimination suit alleging sexual harassment that is eventually found to be without merit, but then that manager decides to block all attempts the complaining employee makes toward promotional opportunities, the employer may be held liable the manager’s discriminatory retaliatory conduct.


If you are an employer, or professional responsible for handling civil rights actions for a company, call Garcia & Gurney today and speak with an expert employment attorney. 

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