Retaliation Claims Present Difficult Challenges, Part I

Part I

Note: Because of the importance of this topic, it will be discussed in both this issue and the upcoming January 1998 issue.

Retaliation lawsuits are becoming increasingly popular among plaintiffs' attorneys. In order to minimize their exposure to such claims, employers must understand their obligations under the numerous anti-retaliation laws.

What Protection Do Anti-Retaliation Laws Provide?

Federal and state anti-discrimination laws, such as the Michigan Elliott-Larsen Civil Rights Act, Title VII, the Americans with Disabilities Act, the Michigan Handicappers' Civil Rights Act and the Age Discrimination in Employment Act, protect employees from retaliation for asserting or filing claims under any of these acts, or for "opposing" a violation of one of the acts. The National Labor Relations Act and the Michigan Public Employment Relations Act protect employees who engage in union activities from retaliation. Michigan and federal laws also protect "whistleblowers." Generally, if an employee has reported, or is about to report, an employer to a public agency, the employee cannot be retaliated against in return.

The anti-retaliation provisions contained in both the civil rights statutes and whistleblowers statutes clearly protect employees who make formal complaints to public agencies about workplace discrimination or other violations by an employer. However, the scope of "protected activity" extends beyond such obvious cases.

Under anti-discrimination laws, for example, employees who report alleged violations of the civil rights laws (such as discrimination or sexual harassment) to their employer are protected. In addition, those who witness and report harassment or discrimination against other employees, as well as those participating in an EEOC investigation initiated by another employee, are likewise protected.

Under whistleblowers statutes, employees who are considering reporting a violation to a public body are protected. This means that an employee who tells his supervisor that he believes a law is being violated, and threatens to report it, is protected from retaliation on that basis. In addition, the accuracy of charges made by an employee are irrelevant as long as that individual is acting in good faith. Thus an employer cannot take action against an employee who raised false charges, as long as the employee believed the charges to be true. In summary, employers cannot take action against employees based on the perceived validity of their activities or their perceived motivations.