This defense is difficult because such questions inherently raise "mixed-motive" issues. Did the employer make the personnel decision for a legitimate business reason or because of the worker's assertion of a claim?

Courts are apt to find the employer's defense laden with factual questions due to these "mixed-motive" questions, and typically decline to grant motions for summary judgment. More often than not, this forces employers to defend retaliation claims before a jury.

The result is often a whipsaw of liability for an employer, who then faces a claim for punitive damages--because plaintiff's counsel can assert that the company "ought to be taught a lesson" about interfering with the statutory right of an employee to assert a complaint.

Perhaps the most difficult type of retaliation claim to defend is one brought under SOX. By statute, an employer has the burden of proof to demonstrate a legitimate, nonretaliatory explanation for its personnel decision relative to the employee asserting a claim. The "whistle-blower," on the other hand, can establish liability if he or she demonstrates that the "whistle-blowing" was at least one of several motivating factors for the adverse personnel decision at issue.

If the plaintiff in a SOX case establishes liability, the employer must reinstate the worker immediately (even pending further legal proceedings) as one of several remedies.

The U.S. Supreme Court added fuel to the fire this summer when it issued its ruling in Burlington Northern vs. White on June 22. Although the case involves allegations of retaliation under Title VII of the Civil Rights Act of 1964, its pro-plaintiff holding expands the circumstances under which workers may recover for retaliation in the workplace.

In White, the plaintiff worked as a forklift operator. Her employer changed her duties to a standard track laborer after she complained of alleged sexual harassment, and subsequently suspended her without pay for 37 days. The employer claimed that work performance issues supported its personnel decisions of the job change and suspension.

After she filed a workplace grievance, the woman was reinstated with full back pay. She subsequently sued for retaliation. The Supreme Court held that the employer's actions were retaliatory because its actions were sufficient to dissuade a reasonable worker from making, or supporting, a charge of discrimination.

The Supreme Court's decision gives the green light for workers to expand the universe of circumstances under which retaliation claims can be litigated and won against their employers.

Since plaintiffs' lawyers view retaliation claims as "low-hanging fruit," it behooves employers to undertake careful and measured personnel decisions when dealing with employees who have asserted various complaints in the workplace--such as filing a workers' comp claim, an employment discrimination or harassment claim, or a "whistle-blower" claim.

Diligent efforts to substantiate and document legitimate, business-related reasons underlying personnel decisions pays dividends in keeping the company out of legal harm's way and creating impediments to plaintiff's lawyers suing on retaliation theories.