An employee tells you a supervisor regularly makes discriminatory comments about him, goes public with a claim that your company is doing something illegal, or files a complaint against your organization for harassment. You know addressing the issue will disrupt your workplace, require an intense investment of time, and potentially cost your company money and community reputation.
Are you tempted to send the employee packing or to “get even” in some other way?
Apparently, some employers still are. In 2024, the Equal Employment Opportunity Commission (EEOC) received 42,301 retaliation charges, making up nearly 48% of the 88,531 total discrimination complaints filed. Retaliation continues to be the most frequently alleged basis for workplace discrimination—and a major legal risk for employers.
Retaliation occurs when an employer punishes or takes adverse action against an employee who has complained about workplace discrimination or harassment. It’s a classic example of making a bad situation worse—often resulting in additional legal claims beyond the original complaint.
Federal laws prohibit employers from retaliating against workers, former employees and job applicants who assert their equal employment opportunity (EEO) rights or engage in “protected activity,” such as:
Even if the underlying discrimination claim is not proven, the retaliation claim may still stand on its own. The laws are designed to create an environment that encourages employees to resist discrimination at work without fear of losing their jobs or otherwise being punished.
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Examples of retaliatory employer behavior include:
How an employer responds to an employee’s reported harassment or discrimination concerns or other protected EEO activity can either mitigate the situation or exacerbate it. To minimize claims of workplace retaliation, employers can and should take preventive steps before and after an employee complains by:
Strong anti-retaliation policies are all-inclusive. In other words, they aren’t limited to any single protected activity. They clearly state the company’s intolerance of retaliation against all protected activity and against whistleblowers and describe the retaliatory actions that are both prohibited and illegal.
An anti-retaliation policy also should include a reporting procedure so employees know how to make any concerns known. Many companies use anonymous hotlines so that employees can report misconduct without revealing their identities. This reporting method greatly reduces the chance of retaliation occurring.
Human resources staff and management should be trained to identify indicators of retaliation, which may include the complaining employee being excluded from social interactions or experiencing increased or inconsistent performance expectations. Quickly putting a stop to conduct employees could perceive as retaliatory can help prevent a formal claim.
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One of the most effective preventive measures employers can take to avoid perceived retaliation is to promptly and thoroughly investigate every employee complaint.
It’s also imperative to ensure retaliation is not occurring while an investigation is underway. Employees who have engaged in protected activity – especially if they have done so recently – may be on heightened alert. They, therefore, may misconstrue all personnel actions or criticism of their work as negative, so double-check the way you handle any actions that might be considered remotely retaliatory.
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Make sure any steps you take to discipline or critique the employee are both necessary and consistent with company policy and practice. Ask yourself if you would take similar action if a comparable situation had arisen with another employee. If employees are fairly treated after making a claim, they will be less likely to raise retaliation allegations later.
If you must discipline or terminate an employee after a complaint has been filed, a well-documented, up-to-date performance history becomes invaluable. If you start keeping detailed notes on the employee only after a complaint is made, the sudden increase in documentation and any adverse action you take is likely to be interpreted as retaliatory.
Creating an environment where employees can report concerns without fear of punishment protects your company—and your people. The more proactive and transparent your efforts, the less likely employees are to assume retaliation.
If your culture reflects fairness, trust and accountability, employees are more likely to feel supported—and less likely to pursue legal action.
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Retaliation claims aren’t just legal issues. They’re culture issues. At Axcet HR Solutions, we help small and mid-sized businesses prevent, detect and respond to workplace retaliation claims—before they escalate into lawsuits or damage employee morale.
Our certified HR consultants can help you develop strong anti-retaliation policies, train your leadership team and manage sensitive investigations with professionalism and care.
Let’s build a workplace where concerns are heard—and retaliation has no place. Talk to Axcet HR Solutions today »
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