The Rise of Retaliation and Whistleblower Claims


By Ben Mathis and Anthony Del Rio
Retaliation claims against employers are on the rise, and all employers must be cognizant of the increased legal risk of such claims.  In 2010, for the first time ever, retaliation surpassed race discrimination and became the most common charge filed with the Equal Employment Opportunity Commission (EEOC). Since 2005, the number of retaliation claims filed with the EEOC has increased by 30 percent.  And, the EEOC, which enforces employment laws, only has jurisdiction over a small number of the 38 federal laws that provide whistleblower and retaliation protection. 

The dramatic growth of retaliation claims in the last decade is due to many reasons, but the primary driving factor is recent plaintiff favorable rulings from the Supreme Court of the United States.  In addition to the increase in EEOC retaliation claims, Congress passed many new statutes and increased the strength of already existing statutes that afforded retaliation protection to employees.
Supreme Court Rulings
In 2006 the Supreme Court handed down Burlington Northern v. White, which is the landmark decision on retaliation claims.  The case involved a female employee who complained to her supervisor about sexual remarks and shortly after the complaint she was reassigned to a position that was considered to be less desirable than the position she was working previously. The official justification for the plaintiff’s reassignment was that co-workers complained that a more senior man should have her original position because it was considered less demanding. Under prior precedent such a reassignment would not have been considered “actionable” because there was no meaningful effect on the plaintiff’s job, however the Court held that the reassignment was “materially adverse” and effectively lowered the bar for retaliation claims.
The new standard that Burlington Northern of “materially adverse” established is less demanding and makes it much easier for an employee to prevail on a retaliation claim.  If an action “might have dissuaded a reasonable worker from making or supporting” a discrimination charge, then that action can be considered materially adverse.  SinceBurlington Northern, the circuit courts have held a wide variety of actions to be “materially adverse” under the new standard, some as minimal as “reading aloud a newspaper article” about a discrimination lawsuit in the employee’s presence.
In addition to lowering the bar for “materially adverse” actions, the Supreme Court has also expanded coverage of people who may bring a retaliation claim.  In 2008, the Court held that there were implied retaliation prohibitions in Section 1981 and ADEA claims.  In 2009, the Court held that an employee answering questions can be considered protected activity.  In Kasten v. Saint-Gobain (2011) the Court expanded protections to oral complaints regarding FLSA violations, and in Thompson v. North American Stainless (2011) the Court further extended protection to effected employees even if they did not file a complaint at all (for example, friends and family members of someone who complained).
New and Modified Statutes
While most employers are probably familiar with EEOC based retaliation claims, they may not be aware that there are many more statutory protections from retaliation provided to employees.  The most recent statute that provides for retaliation protection is the Dodd-Frank Act, which has yet to be interpreted by the Court, but provides expansion of protection to a wide range of employee actions.
In Dodd-Frank, Congress included an arbitration exemption for retaliation claims, which allows employees to completely bypass any arbitration agreement they normally would have been bound by. Furthermore, Dodd-Frank even provides for an immediate right of action in federal court, and there is no requirement for administrative exhaustion.
Most statutory retaliation provisions protect different types of whistle-blower activity.  Generally, if the employee reports concerns regarding a possible violation of the governing statute, then they are protected from retaliation.  Depending on statutory law and court precedent, an employee doing something as minimal as expressing a concern to a supervisor or a coworker may be considered protected activity.  Because of the wide variety of governing statutes and the complexities that exist regarding what is protected, employers should be certain what statutes apply to them and how to insure their policies adhere to the legal requirements.
For more information, contact Ben Mathis at 770.818.1402 or [email protected] or Anthony Del Rio at 770.818.1436 or [email protected].