Expanding Protection for Whistleblowers under Federal Employment Laws: A Primer on Retaliation (2014)

I. IntroductionRetaliation is a claim that can be made by an individual under a number of employment laws in which the individual employee claims that he or she was punished by the employer for having engaged in statutory protected activity. These protected activities include, but are not limited to, filing an equal employment opportunity (EEO) complaint, threatening to make a complaint, participating in an investigation, or testifying in an investigation. Retaliation has become an issue of major concern for many employers, as in the past fifteen years, retaliation claims under federal equal employment opportunity laws have risen by nearly 64 percent. Particularly disturbing to employers is the fact that retaliation-based charges accounted for more than of 37 percent of the total charges investigated by the Equal Employment Opportunity Commission in 2012. Therefore, the purpose of this paper is to examine this rise of the most common retaliation claims that are made under Title VII of the Civil Rights Act of 1964, as well as under other federal employment laws such as the Age Discrimination in Employment Act, Americans with Disabilities Act, and Fair Labor Standards Act that contain similar provisions. In particular, we analyze the legal nature of retaliation as a claim actionable under these federal laws while making a distinction between direct retaliation and indirect retaliation. We focus specifically on the expanding risk for litigation under actionable third-party retaliation, which is addressed in light of the recent U.S. Supreme Court decision, Thompson v. North American Stainless. In conclusion, we provide general guidance to employers searching for effective means to reduce their exposure to retaliation complaints.II. RetaliationRetaliation is a charge made by an employee that he or she received some adverse employment action (demotion, termination, reassignment to a less desirable position, etc.) as a direct result of reporting an employer's willful violation of a given statute.1 Several statutes, both federal and state, contain clauses prohibiting employers from engaging in such retaliatory action.In the federal equal employment opportunity (EEO) laws, retaliation is treated as actionable under any of several statutes enforced by the Equal Employment Opportunity Commission (EEOC). Based on these laws, retaliation is becoming increasingly invoked as demonstrated by the marked rise in retaliation complaints over the past decade and a half. While in 1997, retaliation-based charges only accounted for 18,198 (roughly 22.6%) of the 80,680 charges filed with the EEOC that year, by 2012, retaliation charges had risen to 37,836, up nearly 66%, while total charges rose by only 23%, or 99,412 during the same period.2 This was an approximate increase of over 125% in the actual number of charges since 1990, when retaliation constituted only 12% of total charges.3 Retaliation-based charges which accounted for over 37% of total EEOC receipts in 2011 are representing the highest number of private sector retaliation complaints to date.4 All of this data indicates that the meteoric rise of retaliation complaints is becoming a major concern to most employers.Most employment statutes contain an anti-retaliation clause, which, in the popular vernacular, is referred to as a whistleblower's clause. The term whistleblower refers specifically to the employee who reports his or her employer's violation of some statute or regulation. Most likely, the term originated from the phrase blowing the on the employer. One source states that it may be an allusion to the practice of 19th century British policemen who blew a whistle when a crime was witnessed in commission.5The purpose of any retaliation clause is to protect the whistleblower's right to report statutory violations or actions contrary to public policy without fear of reprisal. But, as explained further in this paper, these clauses extend protection to more than the individual whistleblower. …