What is a retaliation claim and why are they so popular?

According to the U.S. Equal Employment Opportunity Commission (EEOC), in 2012, 38 percent of all EEOC claims were for retaliation.

The reason retaliation claims have become so popular in recent years is because case law and legislative developments have:

Broadened the field of people protected against retaliation
Relaxed the burden for establishing retaliation
Expanded the damages available to a plaintiff in such a claim

Further, retaliation claims have a much higher success rate than discrimination claims.
The basics of a retaliation claim
In essence, a retaliation claim is that the employer ‘took revenge’ or retaliated for an action the employee took that was legally within the scope of employment law.

For an employee to establish an unlawful retaliation claim, he or she must show that:

They took part in a protected activity (such as file a claim)
Their employer took an unfavorable action against them
There was a connection between the protected activity and the unfavorable employer action.

For an employee to establish protected activity they must show the participation in the activity was protected by employment law such as:

  • Filing a claim
  • Testifying
  • Assisting/taking part in an investigation
  • Opposing an unlawful employment practice

The Supreme Court and Congress have broadened coverage and damages
A number of U.S. Supreme Court rulings have expanded anti-retaliation protection to cover things such as:

Broadening the term “employee” to include former employees
Allowing oral complaints to have a comparable weight as filed complaints
The “scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm”

Further, legislation passed by Congress has expanded the range of damages and expanded anti-retaliation protections, including compensatory and punitive damages and protections for a wider range of individuals.
Retaliation is easier to believe than discrimination
The other side of this coin is that it is generally easier to believe that a person could retaliate against an accusation of wrongdoing rather than just blindly discriminate against someone because of their race, religion or age. Individuals who are tasked with fact finding are after all human beings and often make a connection between an accusation and a reaction of retaliation. And chances are, plaintiffs in retaliation claims are on counting on that.
Retaliation claims require an experienced NY business litigation attorney to navigate
A retaliation claim can be tricky for a variety of reason but maybe moreso because of that intangible human factor. People generally believe that others seek revenge and often have personal experiences of such occurrences. This alone can make a juror sympathetic toward a plaintiff. If you face a retaliation claim you should speak to an experienced NY business litigation attorney immediately. A skillful attorney can help you determine the legal remedies available in your situation.

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