Employment laws prohibit retaliation against employees or applicants who engage in “protected activities,” which includes complaining to an employer about unlawful discrimination or other violations of employment laws, being involved in an investigation conducted by an employer or government agency, or filing a charge with the Equal Employment Opportunity Commission or a related state agency. Moeller Barbaree’s Atlanta employment attorneys routinely represent clients in cases involving retaliation claims, which are being pursued in ever-increasing numbers here and in other jurisdictions. According to the Equal Employment Opportunity Commission’s data, retaliation claims are now asserted at a higher rate than any other type of violation of the federal equal employment opportunity laws. Retaliation claims based on protected complaints about violations of other federal statutes, including reporting violations of the Fair Labor Standards Act, the National Labor Relations Act, or other whistleblower provisions are also on the rise.

Proving unlawful retaliation generally requires evidence that an employee or applicant engaged in a type of protected activity and that an employer took a “materially adverse” action against the employee because of that protected activity. Protected activity falls into two wide categories – opposing discrimination and participating as a witness or a charging party in a proceeding involving employment laws. In Moeller Barbaree’s attorneys’ experience, whether an employee or applicant engaged in protected opposition for purposes of her retaliation claim is often the most contested issue in litigation, as the claimant has the burden of proving both that she believed that her complaint to the employer concerned unlawful activity and that a “reasonable person” would also believe that the conduct she complained about concerned unlawful activity. Informal and formal employee complaints or concerns may qualify as protected opposition. Protected participation may include filing an EEOC charge, acting as a witness in an investigation or other EEO proceeding, or participating in some other way in an EEO matter.

Moeller Barbaree’s lawyers have also represented clients in cases where the protected activity was an employee’s decision to refuse to do something because he reasonably believed it would be discriminatory, where an employee intervened to protect others from discrimination or harassment, and where an employee complained to management about discrimination in pay, among others. Keep in mind an employee may be able to prove protected opposition and/or participation even if the original discrimination allegation is not sufficient to state a claim. Similarly, retaliation claims may be brought by applicants, current employees, and even former employees.

Although courts in Atlanta and elsewhere have different interpretations of what is a “materially adverse action” for purposes of a retaliation claim, one good rule of thumb is whether the employer’s allegedly retaliatory action would deter or discourage a reasonable employee from engaging in that protected activity in the future. An employer’s decision to refuse to hire, deny promotion, demote, discontinue job benefits, suspend, or terminate someone because that person engaged in protected activity may be an adverse action that satisfies the elements of a retaliation claim. In contrast, minor slights or punishments may not rise to the level of being an adverse action for purposes of a retaliation claim. If an applicant or employee can offer proof of protected activity followed by a materially adverse action, an employer will have the opportunity to show it was not aware of the protected activity, or that there were non-retaliatory reasons for the action taken. The employee’s ultimate burden of proof is to show that “but for” the retaliatory motive, the adverse action would not have been taken, or, in other words, retaliation caused the employer’s action. Whether a retaliation claim succeeds or is dismissed depends on the facts and circumstances of each particular case.

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Moeller Barbaree’s attorneys in Atlanta can provide assistance if you believe you have been retaliated against, or you are an employer concerned about the potential for a retaliation claim. Please contact the Atlanta lawyers at Moeller Barbaree at 404-748-9122, for a free, no obligation consultation or use our convenient email form.

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