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MARSHALL LAW

Recent Retaliation Rulings Reflect Reversal, Rejection
Marshall H. Tanick

Retaliation constitutes one of the most rapidly growing types of employment law claims.

The concept comes in several different formats. In discrimination claims under Federal and State laws, retaliation lawsuits generally are brought by employees after discharged or other adverse action, after engaging in protected activities. This genre of litigation is occurred with increasing frequency, as reflected in statistics from the Equal Employment Opportunity Commission (EEOC), which oversees Federal discrimination and harassment claims.

In 2007, the last year for which statistics are available, it recovered 26,663 claims, comprising nearly one-third of all charges with that agency. The filings represented an increase of nearly 20% over the level of retaliation claims during the earlier part of the decade and a hike of nearly 50% from a decade ago.

The rise in retaliation cases probably has been boosted by several factors, most notably a series of Supreme Court cases that have made it easier to pursue these claims. The more congenial environment for retaliation claims was advanced by a ruling of the High Court earlier this year in Crawford v. Metropolitan Gov't of Nashville and Davidson County, 129 S.Ct. 846 (2009). In one of it first rulings of 2009, the justices unanimously held that the Title VII of the Federal Civil Rights Act protects employees from retaliation for participators in workplace investigations of discrimination and harassment claims. The ruling came on the heels of two decisions by the Supreme Court last year that allowed discrimination claimants to pursue workplace retaliation claims. CBOCS West, Inc. v. Humphries, 128 S. Ct. 1951 (2008); Gomez-Perez v. Potter, 128 S. Ct. 1931 (2008).

Retaliation claims that arise under laws such as whistleblower laws state on workers compensation measures, usually assert that employees have been subject to reprisal after taking steps that are statutorily-protected.