The basic human tendency, when attacked, is to retaliate in some manner. While this may serve individuals well in a street fight, it is not conducive to avoiding legal liability in a corporate setting.

Retaliation claims, although not new, are gradually becoming more difficult to dismiss than more "traditional" discrimination claims.

Retaliation claims, as the name suggests, are allegations that an employer has retaliated against its employee specifically because the employee filed or threatened a legal action against the employer. In most situations, these claims arise when an employee (often under the Americans with Disabilities Act ("ADA")) files an action with the Pennsylvania Human Relations Commission ("PHRC") or the Equal Employment Opportunity Commission ("EEOC") against his/her employer. Shortly after receiving notice of the lawsuit, the company takes disciplinary action against the employee for events (hopefully) that are completely unrelated to the original claim filed with the PHRC or EEOC. Inevitably, this leads to the filing of a retaliation claim by the employee who alleges that the company only took action against him/her because he/she filed an action with the PHRC or EEOC.

While many companies tend to downplay the significance of this "add-on" claim, recent case law would urge more caution. This is because courts often find retaliation claims are stronger than the original claim upon which they are based. The latest example of this occurred recently in the Third Circuit Court of Appeals in a case entitled Shellenberger v. Summit Bancorp, Inc., 2003 U.S. App. Lexis 1308 (3rd Cir. 2003). In that case, Ms. Shellenberger alleged, in a Charge filed with the EEOC, that she suffered from a disabling condition in which cosmetics, perfume and/or after-shave lotion worn by co-workers caused her to suffer a debilitating breathing disorder. Ms. Shellenberger claimed in her Charge that Summit refused to accommodate her disability. About one month after the Charge was filed, but before Summit was even aware that a Charge had been filed, a meeting was held in which the Company human resources director told Ms. Shellenberger that Summit knew "she was taking the legal route?." Shortly thereafter, after several more failed attempts at accommodation, Ms. Shellenberger was fired by Summit, allegedly for insubordination and for actions totally unrelated to her lawsuit.

Initially, the United States District Court for the Eastern District of Pennsylvania dismissed both Ms. Shellenberger's ADA claim and her retaliation claim. However, the Third Circuit Court of Appeals ruled, on January 23, 2003, that Ms. Shellenberger was entitled to go forward with her retaliation claim. In other words, although Ms. Shellenberger's original ADA claim was dismissed (a decision that was upheld by the Court of Appeals), Ms. Shellenberger was still permitted to go forward with her claim of retaliation. The Third Circuit specifically based this ruling on the statement from the Company's human resource director that Summit "knew" Ms. Shellenberger was "taking the legal route."

This case points out the inherent danger anytime an active employee files any type of claim against a company. As soon as such an action is filed, the employee automatically gains another cause of action if and when the company takes additional disciplinary action against that employee on the basis that a Charge or Complaint was filed. In fact, many retaliation claims are based simply on the close timing of the disciplinary action and the filing of the Charge/Complaint. The Summit case shows that even if the underlying claim has no merit, the retaliation charge can and often does continue to live on.

Because of this, employers are urged to be extremely cautious when dealing with employees who have filed charges or complaints against the company. That is not to say that employees cannot or should not be disciplined after filing a Charge/Complaint. On the contrary, such a filing does not immunize the employee from disciplinary action. Instead, employers are urged to proceed with extreme caution and care when handling any and all disciplinary actions involving an employee who has already filed a Complaint and/or Charge. In fact, competent legal counsel should be consulted in such situations to avoid any actions or statements that could, in fact, make a relatively easy legal situation into a very difficult one.

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