BEST PRACTICES FOR AVOIDING RETALIATION CLAIMS
Retaliation was the most filed claim with the Equal Employment Opportunity Commission (EEOC) in fiscal year 2017—nearly half of all charges included a claim of retaliation. How do employers avoid being part of that statistic?
What is Retaliation?
Retaliation exists where there is a protected activity by an employee, an adverse employment action by the employer, and a causal connection between the two.
A protected activity can include opposing unlawful activity (i.e. making a complaint alleging harassment or discrimination) or participating in proceedings regarding alleged unlawful activity (i.e. testifying in a coworker’s discrimination lawsuit). It does not include actions that interfere with job performance or threats/acts of violence. While adverse employment actions include things such as termination of employment, reprimands, material change in job functions, harassment, etc., they do not include every perceived unfair treatment in the workplace.
Causal connection between an employee’s protected activity and the employer’s adverse employment action is often easy to show, particularly when the adverse employment action takes place close in time to the protected activity. For example, a demotion that follows almost immediately after an employee makes a complaint of harassment.
Best Practices for Avoiding Retaliation
All employers should be proactive when it comes to retaliation. Taking affirmative steps to avoid retaliation claims will serve much better than trying to remedy a problem after the fact. The following are some best practices for avoiding retaliation claims.
Have a Policy Against Retaliation
Employers should make it clear that retaliation will not be tolerated from any employee. Having a clear, written policy against retaliation is key. The policy needs to outline what retaliation is, the consequences for employees who engage in retaliation, and how employees can report suspected retaliation.
Train and Train Often
Having a policy (unfortunately) is not enough. Employers should make sure that all employees understand what constitutes retaliation and how to avoid engaging in conduct that might give rise to a retaliation claim. The best way to do that is through training. Managers and supervisors need to know how to properly respond when employees engage in protected activities, like filing a harassment complaint or participating in an investigation. It is important to provide training often to ensure your employees are up-to-date on best practices as well as company policy.
Keep Matters Confidential
The fewer people who knows about the protected activity—whether it is opposing an unlawful activity or participating in a proceeding regarding an alleged unlawful activity, the fewer opportunities there are to engage in conduct that might be considered retaliatory. Knowledge of a complaint or proceeding should be kept on a need-to-know basis and those who “need to know” should also be reminded that they are not to retaliate based on that information.
When employees do bring concerns to your attention, it is important to assure them that the company takes their concerns seriously and at no time will retaliation be tolerated for bringing forth concerns. This is, again, an opportunity to reiterate your company’s policy regarding retaliation and the proper process for reporting suspected retaliation.
Consider Discipline Carefully
When considering taking an adverse employment action, it is important to review whether the employee has engaged in protected activity and whether the adverse employment action might be viewed as retaliatory. Employers should never treat an employee differently (i.e. more severely) because they engaged in a protected activity. Consider all the facts of the situation, including following relevant company policies, before taking an adverse employment action against an employee who has made a complaint or participated in an investigation or proceeding.
When in doubt, employers should consult with a trusted adviser and/or an employment law attorney to determine the risks involved and an appropriate course of action.