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Business Costs & Regulation

Retaliation Claims Skyrocketing

Bosses need to train managers frequently and have an effective process for investigating charges.

The number of retaliation lawsuits filed against employers is booming. In fiscal year 2009, such claims jumped nearly 85%, to 33,613, from 18,198 in fiscal 1997, according to the Equal Employment Opportunity Commission. Most cases result from employees being fired, demoted or denied promotion.

Better informed employees, zealous trial lawyers and a bum economy account for much of the increase. More workers are fighting layoffs or want to erase black marks from personnel files, so they sometimes are willing to push back by filing workplace retaliation claims.

Recent U.S. Supreme Court cases have made it easier for workers to sue. Retaliation is often easier to prove than discrimination, and the punitive and compensatory damages are the same. Often retaliation charges are piggybacked onto discrimination cases. “Virtually all of my cases with discrimination claims now include a retaliation claim,” says Gary Batke, an attorney with Bailey Cavalieri LLC. All a worker has to do is prove that he or she engaged in a legally protected activity and incurred negative consequences, says Batke. Employers have the burden of making a business case for their actions.

Employers need to take steps to avoid getting hit with retaliation claims. Have a zero tolerance policy for retaliation, and train supervisors frequently. Provide them with specific examples. Retaliation isn’t limited just to firings and demotions. It can include lesser actions, such as changing an employee’s schedule or excluding an employee from meetings.