August 9, 2000

An employee may now bring a retaliation claim when an employer reacts adversely to a discrimination complaint by changing workplace practices not directly related to compensation or job duties. Retaliation claims have typically arisen where an employee complained to a government agency or manager about discrimination and then suffered an adverse employment action, such as discharge, denial of promotion or a reassignment with a change in status or benefits.

In a recent case, the federal Court of Appeals for the Ninth Circuit ruled that a retaliation claim could be asserted for any of the following employer responses to a complaint: eliminating an employee involvement program, eliminating flexible start-time, increasing security measures which made it more difficult to complete assigned tasks or reducing workload resulting in a pay reduction. Ray v. William G. Henderson, Case No. 99-15289 (July 2000). The Ninth Circuit also ruled that such employer responses may create a hostile work environment that itself was grounds for a retaliation claim. The Ninth Circuit focused on whether the employer’s responses "were reasonably likely to deter . . . employees from complaining about discrimination in the workplace." The Ninth Circuit is the federal appellate court that oversees the federal trial courts in Oregon, Washington and other western states. 

Retaliation claims are being asserted with increasing frequency, and this decision expands the bases for making such claims. Employers need not shy away from changing workplace practices simply because an employee has complained about discrimination. When a complaint has been made, however, special care should be taken to ensure documentation and review of any action which could adversely affect anyone who has filed a complaint. Such employees are not immune from ordinary discipline or workplace changes, but employers should expect changes involving complaining employees to be more closely scrutinized.

If you have any questions regarding this issue, call or email us. Feel free to share this advisory with others. If you would like to be on our e-mail distribution list, please visit our Email Advisory web page and click on the "Subscribe" button.

Use and Disclaimer