When employees file claims of harassment or discrimination, they are engaging in what the law deems a “protected activity”—opposing workplace practices they believe to be illegal. Regrettably, doing so may leave them open to retaliation, which is also illegal and can lead to equally serious charges.

Retaliation claims were once regarded as little more than postscripts to discrimination and harassment lawsuits, often added solely for the purpose of “beefing up” the charges made in the original complaints. But no longer is it the case that charges of retaliation are merely legal afterthoughts; in fact, retaliation has become a more widespread and costly issue in employment law litigation in recent years.

Consider that in 1992, the Equal Employment Opportunity Commission (EEOC) received 11,096 charges of retaliation. By 2007, that number had jumped to 26,663, an increase of 140 percent and resulting in the EEOC’s recovery of more than $124 million in monetary benefits for charging parties and other aggrieved individuals. Without question, these numbers reflect the disturbing trend of retaliating against employees for engaging in protected activities. However, this dramatic upswing in retaliation may be only the beginning: In light of several recent decisions handed down by the United States Supreme Court, the proliferation of retaliation charges may continue well into the future, perhaps even at an accelerated rate.

The first of these cases, the 2006 case Burlington Northern & Santa Fe Railway Co. v. White, involved a retaliation claim brought under Title VII of the Civil Rights Act. In ruling for the plaintiff, the Court broadened the scope of Title VII’s anti-retaliation provisions. Specifically, the Court held that a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, "which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” The Court’s holding was significant because it increased the types of actions that could be considered retaliatory.

Whereas prior to White, an ultimate employment action, such as termination or demotion, may have been required to establish unlawful retaliation, post-White actions by an employer need only be determined as dissuading a reasonable worker form making or supporting a charge of discrimination to be considered unlawful retaliation. It was this expanded interpretation that led many commentators to believe the Court had lowered the requisite threshold for retaliation claims, thereby making it easier for claimants to prevail.

Following White, two separate cases decided by the Supreme Court on May 27, 2008 again expanded the reach of retaliation law. In CBOCS West, Inc. v. Humphries, the Court was called upon to determine whether section 1981 authorizes retaliation claims. Section 1981, a civil rights law that was enacted just after the Civil War, demands equality for all citizens, regardless of color, in making and enforcing contracts. Although section 1981 does not expressly authorize retaliation claims, the Court relied on well-established precedent to hold that employees enforcing their rights under section 1981 are, in fact, entitled to protection from unlawful retaliation.

Then, in Gomez v. Potter, the second case, the Court held that section 633 of the Age Discrimination in Employment Act (ADEA), which protects federal government employees from discrimination on account of age, also protects federal government employees from retaliation. The Court relied on similar language found in other federal laws to expand the class of people protected from retaliation under the ADEA.

Thus, within a period of less than two years, the United States Supreme Court arguably lowered the threshold for retaliation claims and expressly added anti-retaliation protections to two federal laws. Despite the wide array of available discrimination and harassment claims, these judicial pronouncements will likely serve to keep retaliation claims near the top of the list of the most commonly filed employment-based lawsuits.

Although avoiding claims of retaliation requires determination, commitment, and diligence, taking the following steps may make the task of preventing retaliation more manageable as well as more successful:

1. Know the Elements of a Retaliation Claim
   
   Employers should always proceed cautiously when confronted with high-risk situations, such as the termination of a pregnant employee or the implementation of a reduction-in-force that will affect a large number of senior employees. By identifying a high-risk situation, employers can proactively ensure that laws are not violated. In this regard, retaliation claims are no different from other workplace situations.
   
   Prompt and accurate identification of a high-risk retaliation situation requires a working knowledge of the elements of a claim. Notwithstanding some procedural or jurisdictional variations, a retaliation claim generally includes: i) a protected activity; ii) an adverse employment action; and iii) a link between the two. Upon identifying the existence of a protected activity, such as filing a harassment complaint or testifying for the plaintiff in a discrimination proceeding, employers must understand that they are presently facing a high-risk situation and that preventative measures must be taken to avoid unlawful retaliation.
   
   
2. Establish a Zero-Tolerance Policy
   
   Employers should establish a zero-tolerance policy because the law, quite simply, does not tolerate unlawful retaliation. In addition to banning any retaliatory behavior, the zero-tolerance policy should state that employees are free to engage in a protected activity, such as filing a sexual harassment complaint, without fear of retaliation. The policy should also clearly outline the consequences that will be suffered by any employees who violate the policy. This information should be expressed in the employee handbook and distributed to all employees.
   
   
3. Establish a Procedure for Reporting Unlawful Retaliation
   
   Aggrieved employees who are not given the opportunity to report claims of unlawful retaliation internally are frequently left with no recourse but to seek assistance elsewhere, such as from the EEOC or a private attorney. Therefore, employees should be given a reassuring and convenient procedure for reporting complaints of unlawful retaliation, one that permits the employee to register the complaint to someone other than the employee’s immediate supervisor, who may also be the perpetrator. Like the zero-tolerance policy, this procedure should be detailed in the employee handbook and distributed to all employees.
   
   
4. Separate the Underlying Complaint from the Retaliation Complaint
   
   Despite the fact that a retaliation complaint will usually be paired with another form of complaint, such as sexual harassment, the law treats each complaint separately. Under this legal framework, it is possible for an employee to prevail on a retaliation claim even though the underlying complaint is found to be without merit. Therefore, employers must separate the underlying complaint from the retaliation complaint, treating each as separate and distinct claims throughout the investigation and up to final resolution. It would be reckless to assume that the risk of unlawful retaliation disappears once the underlying complaint is proven to be false. Often, it is precisely this errant assumption that increases the risk of unlawful retaliation, so steps should be taken to avoid the misperception.
   
   
5. Train Supervisors to Handle Employee Complaints Properly
   
   No one likes to hear that something illegal or inappropriate is taking place on his or her watch. Nevertheless, supervisors must be trained to take employee complaints seriously and to treat the employee filing the complaint with respect, regardless of the supervisor’s feelings about the charge. Moreover, supervisors must be trained to abide by company policies for receiving and investigating employee complaints. Once they learn of an employee’s complaint, supervisors must not only restrain any urges they may have to personally retaliate against the employee, but they must also prevent the employee’s coworkers from taking matters into their own hands.
   
   
6. Never Discipline in Haste
   
   Engaging in a protected activity does not necessarily insulate an employee from discipline for good cause, and that includes being terminated. However, disciplining or firing an employee immediately upon discovering that the employee has engaged in a protected activity is a recipe for disaster. Such a course of action will serve only to create a virtually irrefutable presumption of unlawful retaliation. Before taking any disciplinary measures against an employee who has engaged in a protected activity, every effort must be made to ensure that the protected activity did not in any way factor into the decision to discipline the employee. In other words, the fact that an employee has engaged in some form of protected activity can never be “the straw that broke the camel’s back,” resulting in some adverse employment action against the employee.
   
   Although these measures are not an exhaustive list of necessary precautions, they can put employers on the right track toward creating and maintaining a workplace free of unlawful retaliation. And in light of the steadily increasing number of retaliation claims, prudent employers should take reasonable steps to ensure that all employees are held to precisely the same disciplinary standards in the workplace, regardless of whether an employee has engaged in a protected activity. Both the law and business ethics demand nothing less.