How to Prevent Claims for Workplace Retaliation

Every company wants to offer a safe and productive environment conducive to optimal performance. Thus, every employer should provide a workplace where the environment enables employees to perform their best work. As defined under federal and state laws, all job applicants and employees have the right to work free from discrimination based on age, disability, national origin, race, religion, sex and other protected characteristics.

It is vital to understand that employers also may not punish workers for asserting their right to be free from employment discrimination. That’s considered workplace retaliation. To that end, when employees come forward with discrimination or harassment complaints, employers must ensure that workers aren’t retaliated against for raising these issues. Otherwise, businesses may face legal liability even when the underlying claim isn’t proven.

Additionally, the alleged protected activity—such as filing a discrimination complaint—often happens close in time to the employment action (e.g., termination, poor performance review) which makes juries perceive a connection between the two events.

Important information and recommendations are listed below to help businesses avoid this legal issue within their workplace.

Do You Know What Constitutes Retaliation?

According to the Equal Employment Opportunity Commission (EEOC), it is unlawful to retaliate against job applicants or employees for:

  • Filing or being a witness in an equal employment opportunity (EEO) charge, complaint, investigation or lawsuit.
  • Discussing workplace discrimination with a supervisor or manager.
  • Answering questions during an employer investigation of alleged harassment.
  • Refusing to follow directions from a supervisor that would result in discrimination.
  • Resisting sexual advances or intervening to protect others.
  • Requesting a disability or religious accommodation.
  • Asking managers or co-workers about salary information to uncover potentially discriminatory wages.

According to the EEOC, other acts to oppose discrimination are protected as long as the employee was acting on a reasonable belief that something in the workplace may violate EEO laws, even if he or she did not use legal terminology to describe it.

Retaliatory acts include giving an employee a lower performance evaluation than merited, transferring an employee to a less desirable position because of a complaint or changing an employee’s work schedule to times that conflict with family obligations.

Have You Evaluated Your Policies?

Employers should ensure their incentive programs don’t unintentionally encourage retaliatory action. For example, if a manager’s performance is measured by the sales numbers of his or her subordinates, that manager can suffer personal financial detriment when employees take leave and he/she may keep people from taking time off and might lead to retaliation or perceived retaliation when employees take job-protected leave.

Additionally, there are some benefits to tracking employee data about issues like unexcused absenteeism, but employers have to look beyond the numbers. Perhaps workers are getting sick or otherwise absent from the workplace because of a hostile work environment.

Company policies should actively encourage employees to come forward and supervisors should be trained to promote these policies to employees each time there is a complaint or investigation.

What About a Hotline?

Creating an employee complaint hotline is one effective way for an employer to minimize exposure to workplace retaliation claims. Many of these hotlines give the employee the ability to complain anonymously, which can allow employers to solve problems quickly and with minimal disruption.

Take Action!

  • Preserve evidence. Save e-mails, personnel files and other documents that can allow you to tell your side of the story and back it up with concrete proof.
  • Assess whether additional retaliation might occur. For instance, if the complaining employee is still employed, steps should be taken to minimize further retaliatory action.
  • Investigate the claim. Depending on the situation, an internal investigation or one conducted by outside counsel may be appropriate.
  • Employers should also carefully consider their response. Common mistakes employers make in response to such claims or charges are that they:
    – Leave out details and facts.
    – Submit erroneous information.
    – Justify the challenged employment decision on an incomplete or incorrect understanding of the facts.

When retaliation is likely, the company should take swift action to prevent it, such as separating supervisors and subordinates when the situation calls for it or requiring additional approvals for actions taken by supervisors who have been accused of wrongful conduct.

If you have any questions about this or any other HR related matter, please reach out to your assigned DecisionHR Human Resources Business Partner at 1-888-828-5511 .