Preventing Retaliation Claims

Retaliation claims have been on the rise with the EEOC for years. Even while claims of discrimination and harassment may be down, claims of retaliation remain high.

While it may seem illogical, an employee may lose their claim of discrimination or harassment, but still prevail on their claim of retaliation. That’s simply because if an employee suffers retaliation by their employer as a result of complaining of unfair treatment, such as discrimination or harassment, or as a result of exerting other legal rights, the retaliation in and of itself is actionable, regardless of whether the underlying claim has any merit at all.

A Simple Example: Employee complains to HR that he is being discriminated against based on his gender. Supervisor has a well-documented file of warnings Employee received for his conduct and can show that other employees were treated consistently. However, Supervisor felt personally insulted when she learned Employee had accused her of being unfair. So, to punish Employee, Supervisor removed Employee from the work schedule for a week. The EEOC may find no discrimination based on gender, but Employer may be liable for a claim of Retaliation based on Supervisor’s retaliatory action.

Know What Retaliation Is:

Any negative action taken against an employee because they:

• Complained about harassment or discrimination
• Were a witness in an investigation, or
• Exercised their rights under the ADA, FMLA, or other law

Retaliation is prohibited by law and can result in legal liability and disciplinary action against the retaliator, including termination. Retaliation should always be reported immediately. Once on notice of a compliant about retaliation, the employer is required to conduct a prompt and thorough investigation.

Know What To Do – And Not To Do

Immediately report to your HR partner any complaint of by an employee of discrimination, harassment, retaliation, or working conditions. Never ignore any complaint, even if the employee has complained before and the complaint was unfounded.

Keep it strictly confidential. Only those with a “business need to know” should be informed of the employee’s complaint or involvement in a complaint.

Remain professional, respectful and courteous toward the employee at all times:

• Consistently apply policies, practices, and expectations
• Continue to provide feedback, including positive recognition
• Don’t avoid the employee or ignore subsequent performance or conduct concerns
• Separate employees’ coaching and other performance, conduct, leave, or accommodation conversations from any conversations about discrimination complaints to avoid any misconception that the two issues are in any way related

If you need to take action against employee for conduct or performance that was tolerated in the past, confirm that employee was notified of the change and that the change was communicated clearly.

Monitor the situation closely for any signs that the employee is being treated differently than others; assist others who know about the matter by providing this resource tool to them to help them avoid retaliatory behaviors.

DOCUMENT! DOCUMENT! DOCUMENT!

Make note of all conversations with employee; sign & date your notes, do not save on email; download to a secure file and/or save hard copy. Remember, your documented conversation may be needed later to defend against a claim of retaliation!

Know When To Partner With Others:

• Partner with HR on how to manage and coach the employee going forward
• Partner with HR/ADA/FMLA managers for accommodations
• Partner with HR/Legal before taking any performance or disciplinary action against the employee
• Partner with HR or Legal if you suspect co-workers, supervisors, or others are retaliating against an employee who complained or who may be a witness in an investigation

Employees Are More Likely To Claim Retaliation After, Or In Response To, These Situations:

• Employee complains of discrimination, harassment, or unfair treatment, whether to a manager, HR, the EEOC or through their own attorney
• Employee is a witness in a claim brought by someone else
• Employee goes on performance counselling or is reprimanded for conduct
• Employee is in conflict with their supervisor or co-worker(s)
• Employee seeks, receives or is denied an accommodation or leave of absence for any reason
• Employee goes on leave, returns from leave, uses FMLA or other protected leave, or is heading toward attendance policy violations
• Employee complains of wage & hour violations, missed meal periods or rest breaks, scheduling, or any other working conditions
• Employee files a workers compensation claim
• Employee is denied a promotion, transfer, or other request for job change

Don’t let an otherwise baseless claim of discrimination or harassment turn into a liability nightmare by failing to understand what retaliation is, when retaliation may occur and by whom, and how to avoid it altogether.

MPI consultants are experts in compliance training and are available to provide the best in training for your frontline managers, executives and HR teams.

MPI Consulting is based in Blue Ash, Ohio. We offer research-based, proven methodologies that have been implemented and tested with organizations of all sizes and industries. Each of our services is led by seasoned thought leaders and industry veterans that empower our clients to implement programs that move their organization forward.

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