While the doctrine of employee-at-will theoretically remains alive and well in Maine, the expanded use of retaliation claims by discharged or disgruntled employees must be viewed as a threat to the foundations of that doctrine.
The elements of a retaliation claim are essentially the same under the numerous local, state and federal laws that prohibit retaliation. Those elements are (1) the employee must have engaged in some activity protected by law, (2) the employer must have taken an adverse employment action against the employee because he or she engaged in a protected activity, and (3) there must be a causal link between the protected activity and the adverse employment action. Once considered somewhat rare, statutes creating causes of action for retaliation have proliferated. They are raised in a majority of discrimination claims as well as in stand-alone retaliation lawsuits.

The success of a retaliation claim is not dependent on winning any underlying discrimination claim. For instance, an employee who opposes an employment action is protected if he or she reasonably believes the action is unlawful, even if it turns out to be lawful. Damages are often high because retaliatory acts are usually intentional, a condition required for punitive damages. The potential for a retaliation claim is high because employees who might bring retaliation claims do not have to belong to the class of persons protected by the underlying law.  For example, a male who objects to the discriminatory treatment of female co-workers can succeed on a retaliation claim.
The number of laws creating retaliation claims is large and growing larger. Some of the more basic ones include the Age Discrimination in Employment Act, the Americans With Disabilities Act, Title VII (concerning race, sex, national origin, color or religious discrimination), the Maine and federal Whistleblower Protection acts, the Fair Labor Standard Act, the Occupational Safety and Health Act, the National Labor Relations Act and the Maine Workers' Compensation Act.

The courts have taken a broad interpretation as to what constitutes an "adverse employment action." The obvious acts include discharge, demotion and reduction in pay. However, the courts have also included denied promotions, denied pay increases, reassignments, transfers, changes in schedule, negative evaluations, reprimands and closer scrutiny as constituting adverse employment actions. Any of these actions might constitute the basis for a retaliation claim.

An employer's defense to a retaliation claim may be simply stated: it must be able to show a legitimate, nondiscriminatory reason for the adverse employment action. The discharge or discipline of protected employees has been the subject of past articles in this newsletter and presentations at this firm's annual Employment Law Seminar. The proliferation of retaliation claims means that an employer contemplating any disciplinary action against an employee must routinely consider whether the employee has taken any action in the past that might arguably give rise to a retaliation claim.  If so, it is critical that the employer develop a solid record, including all appropriate personnel file entries, to justify the action. If no such record exists, one must be developed. In most cases, problem employees subject to discipline or termination continue to be problem employees. Accordingly, if no documentation of a legitimate, nondiscriminatory reason for discharge or discipline exists, it can be generated, both by summarizing past actions and documenting new ones. When, and only when, such a background file exists should an employee with the potential for a retaliation claim be discharged or disciplined.