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Employers Must Bolster Their Policies Against Retaliation

By Scott E. Gross
July 31, 2008

Over the last few years, employers who have faced claims of race, gender, age or other prohibited discrimination typically find themselves also litigating separate and distinct claims of retaliation. Plaintiffs now allege not only discriminatory acts by the employer, but also acts in retaliation for the plaintiff's having raised discrimination complaints within the company. Plaintiffs launch such two-pronged attacks to increase their chances of steering at least some of their lawsuit past summary judgment, and thereby gain the leverage that accompanies the specter of an unpredictable jury trial. Even in the absence of discrimination itself, juries often find employers guilty of retaliation with no more evidence than the short time between the employee's complaint and the alleged retaliatory act.

Of course, most federal anti-discrimination laws and analogous state laws have always protected employees from retaliation, and prudent employers have adopted policies and practices to effectuate such protections. However, with the United States Supreme Court's recent decision in CBOCS West, Inc. v. Humphries, 128 S. Ct. 1951 (2008), the stakes in retaliation claims arising from complaints of race discrimination have increased dramatically. Employers consequently must revisit and reinvigorate their policies and practices to minimize the risks of exposure to retaliation claims.

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