Avoid Retaliation ‘Witch Hunts’

HR professionals need to train managers on preventing retaliation, which juries are quick to find when litigation ensues.

That said, companies should have zero tolerance for retaliation, but many employees perceive retaliation where there is none, according to Lynne Anderson, an attorney with Faegre Drinker in Florham Park, N.J. “Even if an employee has made an internal complaint, that does not insulate them from adverse action due to legitimate reasons such as poor performance or a company restructuring,” she said.

Easier to prove than discrimination, “retaliation is one of the top litigation risks faced by employers today,” said attorney Joe Beachboard, president of Beachboard Consulting Group in Palos Verdes, Calif.

In addition to understanding what constitutes retaliation, maintaining an open-door culture that affords employees the opportunity to raise concerns without retribution can go a long way toward avoiding litigiousness, Anderson said.

What Might Constitute Retaliation?

Retaliation is prohibited by several employment anti-discrimination laws, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Equal Pay Act, noted Lara Shortz, an attorney with Michelman & Robinson in Los Angeles.

The Fair Labor Standards Act also contains an anti-retaliation provision, said Tom Spiggle, an attorney with The Spiggle Law Firm in Alexandria, Va., and Annapolis, Md. Additionally, retaliation may be prohibited by state law, such as the California Fair Employment and Housing Act, Shortz added.

Many states, including California, do not include any caps in their anti-retaliation laws, Beachboard said, and “thus, the amounts awarded can be significant, especially if the case ends up in front of a jury.”

Shortz provided the following examples of unlawful retaliation in response to a discrimination complaint:

• Terminating or demoting the employee.
• Reducing the employee’s hours or pay.
• Assigning the employee less desirable shifts, roles, or tasks.
• Creating a hostile work environment or subjecting the employee to harassment.
• Denying the employee promotions or training opportunities.
• Giving the employee unjustified negative performance evaluations.

Unlawful retaliatory conduct can also include preventing the employee from attending meetings or other workplace activities after reporting discrimination, Spiggle said.

Another example of prohibited retaliation could include a manager going to everyone in his department, demanding to find out who complained to HR about his inappropriate jokes before meetings, Anderson said. Suppose the retaliatory manager also tells everyone that “loyalty will be remembered.”

In this example, the manager “should not have made any effort to interfere with the investigation,” Anderson said. “His conduct is fairly perceived as an attempt to threaten anyone who either complained or may be a witness in the investigation. If the manager believes that he has been unfairly accused, that should be borne out by the investigation.”

Why Do Managers Retaliate?

Managers may retaliate due to personal biases, frustration, or a desire to protect themselves or the company from allegations of wrongdoing, Shortz said.

Managers might feel that an employee’s complaint threatens their authority, job security, or the reputation of their department. Others may not fully understand the laws prohibiting retaliation or might act impulsively without considering the legal consequences, she added.

“Sometimes, managers may not realize their actions could be seen as retaliation,” Shortz said.

For example, if an employee discloses a medical condition to HR and requests an accommodation, and the manager later reduces the employee’s hours, the manager’s action could be viewed as retaliatory. However, the manager might not have known about the medical condition or the request.

“This highlights the importance of managers consulting with HR before taking any adverse actions to ensure they are aware of all relevant factors,” Shortz said.

Managers who have not been properly trained may view complaints about discrimination as insubordination, Spiggle said. In such instances, if a worker complains about discrimination, and then the manager gets upset at the perceived disruption and takes it out on the employee, it could result in a retaliation claim, he said.

Managerial Training

While retaliation can occur due to a lack of training, Beachboard said that this can be a difficult topic. “The emotions of the manager get involved—especially if he or she is accused of the improper behavior or the claims might reflect poorly on his or her managerial abilities.”

The culture of “don’t get mad, get even” is so pervasive that many individuals believe retaliation is an acceptable response when discrimination claims are brought, Beachboard said.

“Training managers to understand that this is not the case is challenging but possible,” he said. “It requires training focused specifically on the issues and risks associated with retaliation and regular reminders of the organization’s expectations. It also requires a strict policy that if a manager engages in illegal retaliation, he or she will be disciplined, usually with termination. And then, of course, you have to enforce that rule if retaliation occurs.”

Anti-Retaliation Strategies

Beachboard recommended the following steps in addition to training to prevent retaliation claims:

• Develop and consistently enforce a strong anti-retaliation policy.
• Alert the individual accused of the improper conduct that engaging in retaliation of any type against the individual who brought the complaint will result in severe discipline, up to and including termination.
• Remind the manager in question of the company’s anti-retaliation policy and that if the manager engages in any activities that violate this rule, they will be subject to severe disciplinary action.
• When employees raise concerns about discrimination, harassment, or other improper behavior, ask them to immediately alert HR if they believe they have experienced any type of adverse employment action as a result of raising their concerns.

“Check in with these workers regularly in the subsequent weeks and months—clearly documenting such and their response,” Beachboard said.