Managing and Avoiding Costly Retaliation Claims

Both state and federal laws provide protection to job applicants and employees to be free from harassment or discrimination in the workplace or hiring process based on age, race, sex, religion, nationality and disability, among other protected characteristics. When a job applicant or employee complains about harassment or discrimination to a government agency, the employer or someone else within the organization, any action taken against that employee that might be viewed as punishment or retaliation for the complaint can be cause for a retaliation claim against the employer.

Workplace retaliation claims are the most frequently filed claims in employment lawsuits, according to the Equal Employment Opportunity Commission (EEOC). Retaliation appeared in 51.6 percent of all 2018 EEOC charges, claiming the top spot for the ninth year in a row over all other harassment and discrimination charges. Still, many employers are caught off guard when faced with a retaliation claim.

What is Retaliation?

Retaliation can be defined as any adverse action that the employer or someone of authority within the organization takes against an employee or job applicant. 

Adverse action can be a variety of activities including but not limited to: 

• Changes in job or shift assignment.
• Demotion
• Disciplinary Action
• Firing
• Hostile Behavior or Attitudes
• Negative Evaluations
• Salary Reduction

How Employers Can Manage and Avoid Retaliation Claims

While it may not be possible to completely avoid complaints of retaliation, employers can take steps to protect their organization from retaliation claims and manage claims in a way that reduces their exposure and loss. 

1. Include Anti-Retaliation Verbiage in Policies and Procedures.

Every employer should have written policies and procedures that prohibit discrimination and harassment in the workplace and foster a safe and fair company culture. Ensure you have a written anti-retaliation policy that informs employees on the types of actions that can be considered retaliation as well as how and to whom they should report perceived retaliation actions. Additionally, make sure all supervisors, managers and regular employees are trained on this policy to emphasize the company’s commitment to protect workers from retaliation.

2. Carefully Weigh Adverse Actions Before Taking Them.

Employers are able to take adverse actions against employees on a reasonable and non-retaliatory basis. However, if an employee or job applicant has lodged a complaint or participated in an investigation, it is not unusual for them to be more sensitive to adverse actions and view any interactions with suspicion.  Before taking any adverse action against an employee, carefully weigh how and when to approach it. 

There are three things an employer should consider when taking action against an employee, as these would be used in the employee’s defense in a retaliation claim:

• Proximity of the action to the employee’s initial complaint – The shorter the amount of time between the complaint and the adverse action is, the more likely it will be seen as retaliation. 
• Consistency with policies and procedures – Are adverse actions necessary and consistent with company policy and procedures? If a comparable situation has arisen with another employee or job applicant, ensure similar action has been taken. If a different employee has previously been let off with a warning for a similar action, the employer will likely be seen as retaliatory. 
• Documentation of employee performance history – It is critical to document performance history for all employees in order to avoid employment practices claims, and the same rings true for retaliation. If there is no documentation of performance history prior to an employee making a complaint, it can be extremely difficult to refute an allegation of retaliation. 

3. Allow Complaints to be Investigated Promptly and Thoroughly.

Employers should make it known to employees that all reports of harassment and/or discrimination are taken seriously and handled properly, promptly and thoroughly. Employees should understand that if they feel as though they have been harassed or discriminated against, they should immediately contact HR to report concerns, and that they should not be mistreated in any way because of their reporting of a claim or participation in an investigation. Employers should always document all aspects of internal investigations, including interviewing complainants, witnesses and accused parties, gathering evidence, findings and any steps taken toward resolving the situation.

Ensuring that your company is committed to cultivating a workplace that is free of harassment, discrimination and retaliation is the best way to avoid these types of claims entirely. Work with your HR representative to ensure your company’s policies and procedures make it clear to employees that they are free to engage in protected activities without fear of retaliation.