Investment Banks Beware: Retaliation Claims Rise and Are Easier to Prove

October 19, 2011, by Kristan Peters-Hamlin

Prior to 2009, racial discrimination claims had been the most popular and frequent complaints brought before the EEOC. Then in 2010, race discrimination claims and retaliation claims tied for the number one spot. Now, retaliation claims are the most frequent kind of complaint brought before the EEOC, and are usually brought in tandem with other claims of discrimination. Retaliation claims involve allegations that a plaintiff was punished for objecting to discrimination based on race, sex, age, religion or disability, for instance.

Retaliation was cited in 38 percent of complaints filed with the EEOC in the six months ended in March, according to preliminary agency data. That's up from 36 percent in fiscal 2010 and 28 percent in 2001. The EEOC said it won $431 million in pre- lawsuit monetary awards, settlements and conciliation proceedings involving retaliation from October 2008 through September 2011. Settlements ranged from $50,000 to at least $2 million in EEOC lawsuits alleging reprisals so far this year, according to a review of agency statements.

The EEOC may file lawsuits based on complaints brought to it by workers, and employees also may bring private litigation. Retaliation lawsuits can be especially costly for companies in jurisdictions that have no cap on punitive damages, such as New York City, where employees can go directly to court without first exhausting administrative remedies at the EEOC.

Retaliation complaints are rising partly because it can be easier for workers to document that they were punished for complaining than to prove the underlying claim of discrimination. Moreover, claimants do not have to prove the validity of the underlying discrimination claim in order to succeed with a retaliation claim. Moreover, the Supreme Court ruled in a 2006 decision against Burlington Northern Santa Fe Corporation that retaliation actions may include claims that may dissuade employees from bringing a discrimination charge. Juries also appear more ready to believe that employers are motivated by retaliatory animus than discriminatory animus.

In fact, employees are often so fearful of retaliation, both within their companies/firms and in the market, that they hesitate to bring legitimate claims. As an employment attorney, I have heard from many women at investment banks who report stories of outrageous sex harassment, pregnancy discrimination, and good-'ole-boy-networks in which glass ceilings prevent promotion of qualified women. It is important for those women to know that retaliation is both illegal and more easy to prove than the underlying harassment and discrimination, and therefore they should not be dissuaded from bringing legitimate claims.