Federal laws like Title VII of the Civil Rights Act, the Fair Labor Standards Act (FLSA), and the Family and Medical Leave Act (FMLA) prohibit retaliation by employers when an employee complains of workplace discrimination or otherwise engages in “protected activity”. Protected activity can include actions such as filing a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC), complaining to one's employer about job discrimination, requesting accommodation under the EEO laws, participating in an EEO investigation, or otherwise opposing discrimination. Many other statutes, both state and federal such as whistleblower statutes, state workers' compensation statutes, etc. contain retaliatory prohibitions as well.
All told, these new state and local fair employment laws have been enacted with provisions prohibiting retaliation, and decisions by courts and regulatory agencies have broadened the scope of coverage for existing laws. The result– Retaliation is now the most common charge filed by employees.
According to the most recent Equal Employment Opportunity Commission (EEOC) fiscal year statistics, retaliation claims are the most frequently filed type of workplace discrimination claim. Of all the charges filed with the EEOC, charges alleging retaliation totaled 38,539, an astounding 41.1% of all charges. Retaliation related to Title VII charges only totaled 31,478 or 33.6% of charges.
EEOC Charge Statistics from FY 97 to FY 2013 can be found on the EEOC site here. As noted on the website, the number for total charges reflects the number of individual charge filings. Because individuals often file charges claiming multiple types of discrimination, the number of total charges for any given fiscal year will be less than the total of the ten types of discrimination listed.
These statistics beg the question, “Why Are Retaliation Suits So Prevalent Today?”
First, retaliation claims remain viable when the underlying complaint of workplace discrimination is dismissed. This occurs because the the legal standards for proving retaliation are different from those required to prove employment discrimination. Three criteria help to establish a retaliation claim, 1) the employee engaged in a protected activity, 2) the employee suffered an adverse employment action, and 3) there was a causal connection between the protected activity and the adverse employment action. It is not uncommon for a judge to rule against an age, sex or race discrimination complaint, while the employee subsequently wins their retaliation claim. This can happen when an employee is fired for cause (e.g. poor performance), however, the employee is able to link their dismissal to “retaliation” for having previously filing a discrimination suit against the employer. In other words, the employee successfully alleges that the termination following the discrimination claim “proves” that the negative action was retaliation for the protected act. Retaliation claims have been on the rise as competent labor attorneys understand the differences in legal standards required for discrimination cases versus those required for retaliation claims.
Do you have a legitimate discrimination or retaliation case?
If you feel that you have experienced discrimination, or retaliation as a result of filing a discrimination claim, contact the experienced California attorneys at Kingsley&Kingsley. Take advantage of a free initial consultation to discuss your specific case by calling us toll-free at (888) 500-8469 or clicking here to contact us regarding your case.