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Why Employers Should Fear Retaliation Claims

Employers have good reason to fear retaliation claims and plaintiff's attorneys good reason to like them. Title VII of the Civil Rights Act makes it illegal to discriminate against an individual because of race, color, national origin, religion and sex. However, the best claims from an individual's perspective are found in the section of Title VII that prohibits retaliation against individuals who oppose a discriminatory practice, make a complaint of discrimination or participate in an proceeding under Title VII, such as an Equal Employment Opportunity Commission ("EEOC") proceeding or lawsuit. Here's why employers should fear such cases.

1. They Are Easier to Prove. Retaliation cases are easier to prove than other types of discrimination claims. There are many who--wrongly--believe racial and gender discrimination are largely problems of the past. Few people believe that about retaliation. The urge to retaliate is a natural response of fallen man. Whereas in a race discrimination case I have to prove the decision-maker is a racist; in a retaliation case I only need prove he is human.

2. They Are More Likely To Be Filed. There is an old saying that even a dog knows the difference between being kicked and being tripped over. Likewise, while employees may speculate about whether their race or gender motivated their termination, they rarely have such doubts about retaliation. It's easier to see, sense and feel, which makes it more likely a claim will be filed. EEOC statistics bear this out. In 2010, retaliation claims made up 36.3% of all charges filed with the EEOC, more than any other type of complaint.

3.  They Are More Likely To Yield Punitive Damage Awards. Punitive damages are recoverable on a showing the company acted with "malice or reckless indifference" to the federally protected rights of the plaintiff. If a jury finds there was retaliation, they will usually not have trouble finding malice or reckless indifference. That is not always true of other types of discrimination claims.

So, if you are an employer be careful about how you respond to employees who complain of discrimination, and if you are an employee beware if you complain. GSF
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