1. Employers can be liable for retaliation even if ultimately there was no underlying discrimination.
Retaliation claims result from an employer taking an adverse action against an employee who has a ‘good faith’ belief that they have been discriminated against. That doesn’t require the employee to be right, only to have a good faith belief that he or she is right. If there is such a good faith belief, and if the employer punishes them for that belief, the employee can bring a retaliation claim and may even prevail.
2. Juries are much more likely to find in favor of the Plaintiff on a retaliation claim than the underlying discrimination claim.
Jurors do not like to use labels such as “bigot,” “sexist” or “liar.” On the other hand, jurors do have a deep sense of fair play, and even where they are unwilling to find discrimination, they will find retaliation if they believe that the employer has not played fair with the employee claiming discrimination.
3. Everyone connected with the investigation is protected from retaliation.
The U.S. Supreme Court has held that protection from retaliation even extends to employees who participate in internal investigations, even where those investigations don’t arise from the participant’s own complaints, and even where somebody other than the complainant is retaliated against!
4. An employer doesn't have to fire an employee to cause that employee to suffer an adverse employment action.
All kinds of consequences constitute “adverse employment actions” in the employment discrimination arena. Unpaid suspensions; demotions; discrimination in job assignments; shift changes; name-calling; use of certain discriminatory props (e.g. nooses) all can be interpreted as adverse employment actions, and thereby trigger retaliation claims. Any action which "may well dissuade" an individual from bringing a good faith claim of discrimination may constitute unlawful retaliation.
5. Employers can eliminate most claims with proper internal policies and procedures.
Where an employer has an internal procedure for addressing discrimination complaints and the employee does not utilize that procedure, the employer may be able to avoid liability altogether. In addition, prompt remedial measures and a competent investigation can reduce the likelihood of a retaliation claim.
I will explore further each of these points in upcoming posts.