What is it about us humans that make us want to get revenge on other people? When we’re wronged or offended by others, especially if we think their actions were intentional, our thoughts often turn to ways to get back at them. More often than not, though, our vengeful thoughts remain just thoughts, and we never carry out the deed that we think will avenge our wounded souls. But it sure was nice to think about it! Some people choose to carry out the deed and exact revenge. For those who do, the feeling can be oh, so sweet!
What’s the difference, I wonder, between people who just think about getting even and those who actually do? Conscience? Fear? Power and authority? When it comes to getting back at someone in the workplace, I’ll add another reason for not doing it: anti-retaliation laws.
Anti-retaliation and whistleblower laws were enacted to prevent employers from getting back at workers who complain about employer misdeeds. All of the federal employment laws have an anti-retaliation provision. Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), the Uniformed Services Employment and Reemployment Rights Act (USERRA), and other laws make it unlawful for employers to retaliate against workers who allege a violation of those laws or who participate in their enforcement. Other federal laws contain whistleblower provisions that prevent employers from retaliating against workers who report fraudulent or illegal employer activity.
Retaliation claims filed with the Equal Employment Opportunity Commission (EEOC), which enforces Title VII, the ADA, and the ADEA, have risen dramatically in recent years. In fact, retaliation claims now comprise the largest category of charges filed with the EEOC, accounting for 36% of all charges filed. Employers should take note, not just of this statistic, but of the series of employee-friendly U. S. Supreme Court rulings that are driving this statistic upward.
• In 2006, the Supreme Court expanded the types of adverse employment actions that can give rise to a retaliation claim when the Court ruled that an adverse employment action is any action that could dissuade a reasonable person from filing a discrimination charge, and can include actions taken away from the workplace. Previously, an employee could only claim retaliation in most jurisdictions after suffering an ultimate employment action like termination or failure to promote. Burlington Northern & Santa Fe Railroad Co. v. White, 126 S. Ct. 2405 (June 2006).
• The Supreme Court further expanded retaliation protections in 2009 when it ruled that an employee is protected from retaliation when speaking as a witness in another employee’s discrimination complaint, where the witness herself had not filed a claim of discrimination. Crawford v. Metropolitan Government of Nashville, 129 S. Ct. 846 (January 2009).
• More recently, in 2011, the Court held that an employee’s fiancée is protected from retaliation based on a discrimination claim filed by the employee. Thompson v. North American Stainless, LP, 131 S. Ct. 863 (January 2011).
• Also in 2011, the Supreme Court held that an employee filing an FLSA claim was protected from retaliation where the complaint was made orally and was not in writing. Kasten v. Saint-Gobain Performance Plastics Corporation, 131 S. Ct. 1325 (March 2011).
Litigation is expensive. First, there are legal fees. Add to the legal fees the time spent defending the claim. Add to that the negative effect on employee morale and productivity. Consider the costs of the company’s tarnished reputation and diminished good will in the community.
Employers should be careful to treat complaining employees fairly to avoid claims of retaliation. Oddly, employers often successfully defend themselves against the discrimination or harassment claim, only to find themselves still on the hook for a retaliation claim. The employer could have escaped costly legal liability altogether but for the way it treated the complaining employee.
Revenge may be sweet for some. When it comes to retaliation in the workplace, the sweetness may come with an expensive price tag.