As Retaliation Claims Rise, Employers Face New Challenges Under Employment, OSHA and Health Care Laws

Authored By:  Kara M. Maciel & Eric J. Conn

Whistleblower  As we discussed in a recent webinar, employers are facing an increased risk of defending a retaliation complaint as administrative policy changes and expansive federal laws make asserting these claims easier for employees.

Whistleblower and related-retaliation charges are on the rise throughout the country, and the Occupational Safety and Health Administration (OSHA), tasked with fielding complaints under 22 laws, is also becoming more aggressive. The Equal Employment Opportunity Commission (EEOC) enforces the anti-retaliation provisions of several laws, including Title VII and the ADA.  In addition, sweeping laws like the Affordable Care Act (ACA) are creating increased fodder for discrimination complaints.  Armed with increased financial resources, federal investigators now aim to be more receptive to complaints as part of what the EEOC and OSHA view as needed reforms of their whistleblower enforcement arm.

Claims on the Rise

Retaliation claims under Title VII have grown substantially over the years. More than a decade ago, these claims made up less than a quarter of all EEOC charges, but since then they have increased exponentially.  Now not only do they make up the most significant portion of claims, they are almost 50 percent of all claims brought.  OSH Act 11(c) claims have also been increasing, and are now about double the number from 10 years ago.  Despite the large number of 11(c) claims, however, about 72 percent of them are withdrawn or dismissed, and frequently are settled.  Less than 1 percent actually receive a merit determination from OSHA.

Procedurally, there are important timing differences between an EEOC charge and an 11(c) claim.  An EEOC charge must generally be filed Continue reading