Handle with care: Avoiding and managing retaliation claims

Abstract

Anti-retaliation protections for whistleblowers are routinely included in federal statutes. During the past decade, claims of retaliation in employment-related cases have grown in numbers and in reach, due in part to a seemingly far-reaching commitment by the U.S. Supreme Court to interpret anti-retaliation provisions to provide maximum protection to complainants. Employers must take care not to run afoul of the anti-retaliation provisions; however, that does not mean that employees who complain of discrimination are ‘untouchable.’ This article provides an overview of anti-retaliation law as it relates to the employer–employee relationship and outlines eight practical tips for managing and avoiding retaliation claims. Though anti-retaliation provisions provide ample reason for employers to proceed with caution in the face of employee complaints, employers need not succumb to paralyzing litigation fear when addressing concerns regarding complaining employees’ performance issues.