Retaliation nation: Manage adverse actions to lessen retaliation.

Virtually every federal employment law has an anti-retaliation provision--they would be toothless tigers without them. Employees who can't prove outright discrimination often try the retaliation route. Aggrieved employees rarely have trouble finding a lawyer willing to tack a retaliation charge on top of a lawsuit alleging some other kind of employer wrongdoing.

Over the last two decades, the EEOC has charted a steady increase in the number of discrimination and harassment complaints that also allege retaliation.

In fiscal year 2021 (the most recent year for which data are available), the EEOC fielded 34,332 retaliation claims, included in 56% of all complaints filed with the agency. In 1999, there were only 19,694 retaliation claims filed, comprising just 25.4% of EEOC complaints.

Proving retaliation has long been the gray area that courts wrestle with. As a result, employers must tread carefully when dealing with an employee who has exercised his or her rights under any federal law.

THE LAW. When evaluating retaliation claims, courts try to determine whether the employee is covered by the law. That includes:

* Women and members of various minority populations, covered by Title VII of the Civil Rights Act

* Disabled individuals, covered by the ADA

* People age 40 and older, covered by the Age Discrimination in Employment Act

* Any employee covered by the FMLA

* Employees who file grievances under the Fair Labor Standards Act or National Labor Relations Act.

If the person is covered and experienced an adverse job action such as firing, discipline or demotion, and the two events occurred in close proximity to one another, the employer must show that the adverse job action occurred for a valid, nonretaliatory reason.

HOW TO COMPLY. Most managers don't set out to retaliate against employees who assert their rights. Often the problem is that no one manager, supervisor or HR professional has the entire picture of what is occurring. But a crafty plaintiff's attorney can use seemingly unrelated incidents--an unexcused absence here, a disciplinary action there, a poor performance evaluation--to paint the picture for the jury.

Suddenly, a below-average employee becomes a martyr, the target of a vast and sinister conspiracy.

Managing the 'adverse job action'

Every retaliation suit begins with an adverse job action--and employers and employees don't always agree on what's adverse. Workers may perceive a lateral move...