Retaliation: Recognizing A Hidden Threat in The Workplace

Retaliation claims are the “sleeper cells” of employment litigation. Camouflaged as an innocuous act, the retaliation claim typically remains dormant until activated by another, more egregious act. Are you able to successfully identify potential retaliation claims in your workplace? Consider the following …

Maria has been working for the I Love Food (ILF) company for over 3 years. Over the past month, Maria has noticed Audrey, the hostess, tends to seat more Hispanics in her section than in those of her coworkers. When Maria questions Audrey about this, Audrey responds, “It has just worked out that way.”

Maria does not believe Audrey and calmly mentions her observation to her manager, Steven. The next day, Steven calls Maria into his office and issues a written warning for “not getting along” with her coworkers.

Is this retaliation?

The answer may surprise you, but yes, the write up could be considered retaliatory. Maria complained about perceived discrimination in the workplace and the next day, she received a written warning. The proximity in time between Maria’s complaint and the discipline gives the appearance the employer disciplined Maria because of her complaint – making this scenario a textbook potential retaliation claim.

What is retaliation?

Federal and most state laws protect employees and applicants from employer retaliation for engaging in “protected activity,” including filing a charge with the Equal Employment Opportunity Commission (EEOC) or a state agency; cooperating in an investigation, proceedings or litigation; or bringing a complaint to an employer. The retaliation prohibition is quite broad and includes retaliation against a person who objected to a legal practice, but the person reasonably believed to be illegal. Retaliation occurs when an employer takes an “adverse action” against an employee because s/he engaged in a protected activity. An adverse action is an action taken by the employer to try to punish an employee for engaging in protected activity or discourage further engagement in such activities. Examples of adverse actions include:

• Employment actions such as non-selection/refusal to hire, reprimands, denial of promotion, demotion, suspension, and termination;

• Other actions affecting employment such as denial of job benefits, threats, unjustified negative evaluations, unjustified negative references, harassment, or increased surveillance

• Any other action such as an assault or unfounded civil or criminal charges are likely to deter reasonable people from pursuing their rights.

Adverse actions do not include petty slights and annoyances, such as stray negative comments in an otherwise positive or neutral evaluation, “snubbing” a colleague, or negative comments are justified by an employee’s poor work performance or history.

Steps for Employers to Take to Prevent Retaliation

Retaliation is the most frequently alleged basis of discrimination raised before the EEOC. The frequency of retaliation claims makes them the most dangerous claims employers face. Therefore, it is important to recognize situations where retaliation claims can arise and understand how to prevent these claims from occurring in your workplace.

Preventing claims of retaliation in the workplace is surprisingly easy and does not take much effort or time. Take the following steps to help eliminate retaliation claims in your workplace:

1. Create an Anti-Retaliation Policy. Have a policy against retaliation in your Employee Handbook. The policy should specify what retaliation is, state retaliation won’t be tolerated and set forth a process for reporting and investigating complaints.

2. Provide Training to Managers and Supervisors. Provide general training to all managers and supervisors on what types of conduct constitute retaliation and how to respond when an employee complaint is brought to their attention. In addition, when a complaint occurs, provide additional training to the managers, and supervisors who work with the complaining employee (and, where appropriate, co-workers) regarding their non-retaliation obligations. All training should be documented.

3. Take Employee Complaints Seriously. Take all employee complaints seriously and perform a thorough investigation. If the complaint has any basis, remedy the situation immediately. When investigating, remember to focus on the wrongdoer, not the employee who complained.

4. Do Not Ignore or Isolate Complaining Employees. Employees who complain of unlawful conduct should not be ignored or treated as pariahs. Instead, be proactive and engage with the complaining employee. Provide the employee with a copy of the anti-retaliation policy and tell the employee to let you know if s/he experiences problems. “Touch base” with the employee during and after the investigation to ensure there have been no further incidents or other problems. Finally, document all discussions with the employee.

5. Closely Review Subsequent Employment Actions. An HR Professional should review subsequent employment actions affecting the employee before implementation to ensure unlawful retaliation is playing no role in the action.

6. Remember the Employee’s Perception Is What Matters. The employee does not have to be correct that the Company acted in an unlawful manner in order to raise a successful retaliation claim. If an employee reasonably believes the Company (a) acted in a discriminatory manner, or (b) is doing something else unlawful, and the employee opposes the perceived wrongful practice – the employee is protected from retaliation – even if the employee is wrong.

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