How to Curb Workplace Retaliation Claims

LAS VEGAS—"The best defense to a retaliation claim is timely and consistent discipline," said Christine Howard, an attorney with Fisher Phillips from Tampa, Fla. She spoke during a concurrent session June 24 at the Society for Human Resource Management 2019 Annual Conference & Exposition.

That's because plaintiffs have to prove that actions against them were taken because they engaged in protected activity at work. If employers have good disciplinary practices, employees may not be able to make that connection.

Retaliation was once again the most frequent charge filed with the Equal Employment Opportunity Commission (EEOC) in fiscal year 2018, followed by sex, disability and race discrimination charges, according to agency data.

Employees can tack on a retaliation claim to other charges, because most employment laws have an anti-retaliation provision, Howard explained.

Conference attendee Rae Forssberg of HMSHost International said she was attending the session to get some tips on preventing workplace retaliation, because the claims are harder for employers to defend than others.

Retaliation claims are pursued with more regularity because even if an underlying claim of discrimination or harassment has little to no merit, employees can still win retaliation lawsuits if they were disciplined after bringing a reasonable complaint, Howard noted.

So employers should be prepared to show that any disciplinary action taken was unrelated to the employee's protected conduct.

What Is Retaliation?

Under federal and state laws, 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. And employers may not punish workers for asserting their right to be free from employment discrimination. 

Examples of employee activities that are protected under Title VII of the Civil Rights Act of 1964 include:

• Opposing workplace discrimination or harassment.
• Complaining about alleged discrimination against the employee or co-workers.
• Threatening to complain.
• Refusing to obey an order reasonably believed to be discriminatory.
• Resisting sexual advances or intervening to protect others.
• Participating in an internal investigation.
• Participating in EEOC charge or lawsuit deposition as a witness.
• Refusing, as a supervisor, to carry out a management directive to discourage subordinates from filing complaints.

An employee may also claim retaliation under most other employment laws, such as the Americans with Disabilities Act, the Family and Medical Leave Act (FMLA), and the National Labor Relations Act.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

For instance, an employee who was fired after requesting FMLA leave may claim that he was retaliated against for exercising his rights under the act. Likewise, an employee who accused a supervisor of sexual harassment and was demoted may claim she was retaliated against for making the complaint. Even if the employee can't prove the underlying sexual harassment charge, she may still be able to show that she was demoted for making the complaint.

Proving a Claim

Employers should note that disciplining an employee after exercising an employment right isn't enough for the worker to prove a retaliation claim. An employee claiming retaliation under Title VII, for example, must show:

• The employer knew that the employee engaged in protected activity.
• The employer took adverse employment action (termination, demotion and failure to promote are examples of adverse action).
• There was a causal connection between the protected activity and the adverse employment action.
• The employee's protected activity was the "but for" cause of the adverse employment action (meaning that if the employee didn't engage in the protected activity, the adverse action would not have happened).

Title VII provides broad protection against retaliation, so that's the easy part for employees who bring claims, Howard said. The difficult part is proving that whatever happened to the employee was a result of the protected activity, she noted.

An employer may argue that the worker had ongoing performance issues or that a worker was fired because of the way he or she complained (rather than because he or she complained) by using abusive language or exhibiting threatening behavior.  

HR professionals should look for the following red flags when employees are disciplined:

• Suspicious timing.
• Suspicious verbal or written statements (including texts and e-mails).
• Similarly situated employees were treated differently.
• The reason given for action was not true or was inconsistent with company policy or common practice.
  
• Increased supervision or monitoring of a particular employee.
• Higher standards or expectations for a particular employee.

Compliance Tips

Employers must include anti-retaliation language in their policies and should consider having a stand-alone policy on the topic, Howard said. Employers should also train anyone who makes employment decisions to recognize the various forms retaliation can take and how to avoid even the perception of retaliation. 

The policy should:

• Be well-publicized.
  
• Include multiple avenues to complain.
• Specify that complaints are treated confidentially to the extent possible.
• Make clear that all allegations of retaliation are taken seriously.

Timely and consistent discipline is also key, Howard said. Employers shouldn't wait to discipline employees or only find fault with some aspect of their employment after they make a complaint.

"Taking action before a complaint is made, if justified, will go a long way in defending any retaliation claim," she said.