Do you remember the commercials for TIMEX® watches? The watches would be exposed to horrendous conditions, yet they would continue to function.
Alas, two recent court cases handed down from the U.S. Supreme Court further illustrates that retaliation cases are the TIMEX® suits of employment litigation. In one case, Cracker Barrel unsuccessfully argued that a suit filed under Section 1981 (applicable to race claims and sometimes used when a race claim would otherwise be time-barred by Title VII) could include a retaliation component to it, even though Section 1981 did not explicitly protect against retaliation or authorize a cause of action based exclusively on retaliation.
The second case involved a claim under the Age Discrimination in Employment Act by a U.S. Postal Service employee. The ADEA's anti-retaliation provision is delineated for private employers but is silent as to public employers. The Court ruled that the prohibition on retaliation applied equally to public and private employers.
As the potential for discrimination claims continue to brew in our current economic state, it would be wise to refresh your managers and supervisors on best practices to prevent retaliation. We've often talked with our clients about the imposing nature of any suit that includes a claim for retaliation. Those are the suits that usually avoid summary judgment (meaning if you want to get a definitive ruling on the merits, you're going to trial) and can be bears to defend.
So, check your watches for the last time you held anti-retaliation training. If you haven't done it in a while, well, the clock might be ticking. . . .