EEOC statistics for the year ended September 30, 2008, the most recent data that is available, show that charges of retaliation increased by 23% compared to the prior year.   In addition, more than 1/3 of the charges filed with the Agency allege retaliation as one of the claims.   According to this article in The Wall Street Journal, retaliation claims have tripled since the EEOC started keeping track of them in 1992.   The statistics don’t include data for the year ending 2009, but anecdotal evidence from lawyers and human resource professionals suggests the trend continues to accelerate.

One reason retaliation claims are so common is that it is easier to prove retaliation than discrimination.   An employee who charges retaliation does not have to prove that he was discriminated against–only that he engaged in what is called "protected activity", and as a result the employer took some adverse action against him.  

"Protected activity" includes a broad range of actions, from filing a formal charge with the EEOC or state civil rights commission, complaining to an HR official about harassment, giving an interview in connection with an internal discrimination investigation, or providing testimony in support of another employee who claims discrimination.

A 2006 U.S. Supreme Court decision, Burlington Northern v. White, also made it easier for employees to prove retaliation.   In White, the Court held that the "adverse action" to which an employee is subject does not have to involve something substantial like a termination, demotion, or cut in pay.  Rather, the employer’s action need only be "materially adverse" to a "reasonable employee".  What does that mean?  According to the Supreme Court, "materially adverse" means anything that would have "dissuaded a reasonable worker from making or supporting a charge of discrimination"

In Iowa and many other states, an employee may file a retaliation lawsuit if they were terminated for exercising certain legal rights or fulfilling legal obligations.  Examples include reporting an on the job injury, filing a workers’ compensation claim, or serving on a jury.  This type of claim is known as "wrongful discharge in violation of public policy."  It is slightly different than retaliation based upon discrimination because it requires an actual termination; some lesser action will not suffice.

This is a lesson most employers and HR Professionals have heard, but it bears repeating: be cautious and deliberate when taking any action against an employee who may have engaged in protected activity.  That does not mean avoiding discipline or other action that is necessary, but it does mean making sure you have legitimate and documented reasons for whatever action is taken.