Retaliation Claims: Why There’s Never a Right Time to “Get Even”

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 are. The number of retaliation claims filed with the Equal Employment Opportunity Commission has increased dramatically over the past decade, jumping from approximately 34 percent of all complaints in 2008 to more than 51.6 percent in 2018.

What is Retaliation?

Retaliation – when an employer punishes or takes some other adverse action against an employee who has complained about workplace discrimination or harassment – is a classic example of making a bad situation worse. The only thing it achieves is putting an employer at risk for a second claim to be added to the first one.

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:

• Participating in an EEO charge, complaint, investigation or lawsuit;
• Communicating with a supervisor or manager about employment discrimination, including harassment;
• Answering questions during an employer investigation of alleged harassment;
• Refusing to follow orders that would result in discrimination;
• Resisting sexual advances or intervening to protect other individuals;
• Requesting accommodation for a disability or a religious practice; and
• Asking managers or co-workers about their salaries to uncover potentially discriminatory wages.

Employers are forbidden from taking adverse action against employees for alleging harassment or discrimination, even if the underlying claim is never proven. 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. Some examples of employer actions that could legally be considered retaliatory include:

• Reprimanding an employee or giving a lower performance evaluation than is merited;
• Transferring or demoting an employee to a less-desirable position or work location;
• Verbally abusing an employee;
• Making or threatening to make damaging reports to authorities (such as reporting immigration status);
• Increasing scrutiny on the employee’s performance;
• Spreading false rumors; and
• Taking action that makes the person’s work more difficult (for example, changing an employee’s work schedule to conflict with family responsibilities).

How to Minimize Claims of Workplace Retaliation

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:

1. Instituting Anti-Retaliation Policies.  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.

2. Being Proactive.  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.

3. Investigating Complaints.  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.

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.

With workplace retaliation claims on the rise, it is critical to create a culture where employees feel empowered to report workplace misconduct without facing punishment. Take immediate steps to communicate your company’s intolerance for retaliation and all of the behaviors protected by EEO laws. Convey to employees every chance you get how much you want them to thrive in a workplace free of harassment, discrimination and retaliation.

These are the conditions in which employees deserve to work and under which businesses are more successful.