Retaliation charges, which are the most common type of employment claim against companies, create thorny issues for employers that must be carefully managed.

Such charges often are more difficult to defend than the underlying discrimination claim with which they often are coupled in lawsuits, legal experts say. Major reasons include that retaliation is easier to prove in court and juries often seem more willing to believe managers are capable of retaliation than they are of discrimination.

This means it is particularly crucial management takes steps to head off potential retaliation claims once they are aware discrimination charges have been made (see story, page 18). One important step is to ensure there is some distance between the time a complaint is made and any action taken that could be considered retaliatory.

Meanwhile, recent U.S. Supreme Court cases have made it easier for plaintiffs to prove retaliation in court (see Employees' retaliation protection expanded by court rulings).

According to the U.S. Equal Employment Opportunity Commission, there were 36,258 retaliation charges filed in fiscal year 2010, which accounted for 36.3% of the total charges filed with the agency, exceeding any other type of charge. This was a 7.9% increase over the 33,613 filed in fiscal year 2009.

Diana L. Hoover, a partner with law firm Hoover Kernell L.L.P. in Houston, said retaliation charges often reflect the employee's perceptions, rather than the employer's intent. For instance, if a worker asks for a different shift after he has filed a discrimination claim, he may incorrectly interpret rejection of the request as retaliation.

“I don't think a lot of supervisors think through the possibility that whatever action they're taking with regard to that employee would have any connection to the charge of discrimination from the employee's perspective,” she said.

Misinterpreted actions can include a demotion or pay cut introduced for nonretaliatory reasons, or even something seemingly inconsequential, such as wishing another employee a happy birthday but neglecting to do the same for the complaining worker, said Ms. Hoover.

Meanwhile, the employee, who may be anxious after making the discrimination charge, assumes he is being discriminated against, when the employer may not yet even be aware a discrimination charge has been made, Ms. Hoover said.

Christopher W. Olmsted, a shareholder at Barker, Olmsted & Barnier P.L.C. in San Diego, said there may be legitimate reasons for assigning someone to a different job task within the job description, “and so it's easy for an employer to overlook how that may be made to appear to look like retaliation in the hands of a plaintiff's lawyer who's specifically hunting for evidence to show payback” after a complaint.

Mr. Olmsted said he also wonders whether, because retaliation often is brought in tandem with another charge, “there may be something to the idea” that when a company is charged with discrimination, “it's common for plaintiff lawyers to throw in” the retaliation charge as well, Mr. Olmsted said. “It's a different way to address the alleged wrong that the employees believe happened to them.”

Observers say when workers perceive they are about to be fired, perhaps in a reduction in force, they often file a discrimination charges as a pre-emptive measure. They then file the retaliation charge after the layoff.

The employer is then put in the position of having to prove its action “had nothing to do with the decision” to include the worker in the reduction in force, said Ms. Hoover. “It puts the employer in a defensive posture from the very beginning,” she said.

Another problem, she said, is “it's hard sometimes for a large company to convince a jury that the supervisor really didn't know” about the discrimination charge. A lot of people assume the supervisors must have known, she said.

One irony of retaliation claims is that the original, underlying discrimination claim often is dismissed, but the retaliation charge survives. “If you think about it, it's the frivolous charge that would kind of make the supervisor more inclined to retaliate,” said Michael W. Fox, a shareholder with law firm Ogletree, Deakins, Nash, Smoak & Stewart P.C. in Austin, Texas.

“Juries really believe when people stand up and speak out, the employers don't like that and they strike back; and so I think that's why plaintiffs lawyers like (retaliation charges) so much, because they just jibe with human nature,” Mr. Fox said.

Kristan Peters-Hamlin, managing partner with Peters Hamlin L.L.C. in Stamford, Conn., said: “Juries tend to be more cynical about discrimination claims than retaliation claims because they believe that it's human nature to retaliate when somebody's brought a claim against them,” even though they are often reluctant to find somebody is racist or sexist “because that's a very serious finding to make about somebody.”

“Many jurors may not agree with, or be convinced, that someone was discriminated against... but some of that may have to do with the personal beliefs of jurors, who bring their own life experience to bear, who just find it hard to believe that people discriminate,” said plaintiff attorney Frederick M. Gittes, principal at the Gittes Law Group L.L.C. in Columbus, Ohio.

“On the other hand, those same jurors will often have had experiences where people were treated badly just for reporting or complaining about things,” Mr. Gittes said.

Retaliation also is easier to prove than discrimination. Under Title VII of the Civil Rights Act of 1964, “the employee doesn't have to prove that discrimination took place in order to establish a claim of retaliation,” said Richard D. Tuschman, a partner with law firm Duane Morris L.L.P. in Miami.

“As long as the employee's complaint of discrimination has met the definition of protected activity, then the discrimination complaint can be the basis for a retaliation claim,” said Mr. Tuschman. The employee “need not prove discrimination actually occurred” but just that “the employee had an objectively reasonable good faith belief that there was discrimination,” he said.

As a result, it is not “necessarily inconsistent for a jury to say, "We don't believe there was actually any discrimination, but we do believe that the plaintiff made a good faith complaint of discrimination and was retaliated against for making that complaint,” Mr. Tuschman said.

In addition, “there's just an explosion of new statutes that have permitted—and even encouraged—people to come forward and complain about retaliations,” said Philip M. Berkowitz, a shareholder at Littler Mendelson P.C. in New York.

Mr. Berkowitz said these include the Dodd-Frank Wall Street Reform and Consumer Protection Act, which offers financial awards to those who can prove they have been retaliated against when there's wrongdoing; the Foreign Corrupt Practices Act and the False Claims Act, “which also encourages employers to come forward and make complaints about wrongdoing” with the potential of a financial reward.