How to Prevent Workplace Retaliation Claims

When employees complain about discrimination or harassment, employers must ensure that workers aren't retaliated against for raising these issues. Otherwise, businesses may face legal liability even when the underlying claim isn't proven.

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. Employers also may not punish workers for asserting their right to be free from employment discrimination. That's considered retaliation.

Workplace retaliation can take on many forms, as the legal threshold for what constitutes a retaliatory act is very low, said Christopher Moore, an attorney with Ogletree Deakins in New Orleans. 

Retaliation cases are also difficult to win in front of a jury, he noted. Jurors may be hesitant to find that a certain supervisor or company was "racist" or "sexist" by finding liability in a discrimination claim, but they are not so hesitant to find that a company took action against an employee for complaining about perceived discrimination.

Additionally, the alleged protected activity—such as filing a discrimination complaint—often happens close in time to the employment action—such as a termination or poor performance review—which makes juries perceive a connection between the two events, Moore said.

"HR professionals can never ensure that retaliation does not occur, but businesses and entities can take steps to reduce its likelihood," noted Matthew McNicholas, an attorney with McNicholas & McNicholas in Los Angeles.

Know What Constitutes Retaliation

According to the Equal Employment Opportunity Commission (EEOC), it is unlawful to retaliate against job applicants or employees for:

• Filing or being a witness in an equal employment opportunity (EEO) charge, complaint, investigation or lawsuit.
  
• Discussing employment discrimination with a supervisor or manager.
  
• Answering questions during an employer investigation of alleged harassment.
  
• Refusing to follow directions from a supervisor that would result in discrimination.
  
• Resisting sexual advances or intervening to protect others.
  
• Requesting a disability or religious accommodation.
• Asking managers or co-workers about salary information to uncover potentially discriminatory wages.

The list is not exhaustive. "Other acts to oppose discrimination are protected as long as the employee was acting on a reasonable belief that something in the workplace may violate EEO laws, even if he or she did not use legal terminology to describe it," according to the EEOC.

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

Retaliatory acts include giving an employee a lower performance evaluation than merited, transferring an employee to a less desirable position because of a complaint or changing an employee's work schedule to times that conflict with family obligations.

Evaluate Policies

Employers should ensure their incentive programs don't unintentionally encourage retaliatory action. For example, if a manager's performance is measured by the sales numbers of his or her subordinates, that manager can suffer personal financial detriment when employees take leave, McNicholas said. This creates an incentive to keep people from taking time off and might lead to retaliation or perceived retaliation when employees take job-protected leave.

Additionally, there are some benefits to tracking employee data about issues like unexcused absenteeism, but employers have to look beyond the numbers. Perhaps workers are getting sick or otherwise absent from the workplace because of a hostile work environment, McNicholas noted.

"Creating and promoting a culture of compliance and nonretaliation is important," Moore said. HR policies should say more than, "We don't retaliate." Company policies should actively encourage employees to come forward, and HR professionals and supervisors should be trained to promote these policies to employees each time there is a complaint or investigation, he added.

Create a Hotline

Creating an employee complaint hotline is one effective way for an employer to minimize exposure to retaliation claims, Moore said. Many of these hotlines give the employee the ability to complain anonymously, which can allow employers to solve problems quickly and with minimal disruption. 

"I've seen serious issues solved through these channels before a supervisor ever has a chance to retaliate," he said. 

Take Action

"When an employer receives a retaliation claim, there are myriad steps necessary to respond," Moore noted. For example, employers should:

• Preserve evidence. Save e-mails, personnel files and other documents that can allow you to tell your side of the story and back it up with concrete proof.    
  
• Assess whether additional retaliation might occur. For instance, if the complaining employee is still employed, steps should be taken to minimize further retaliatory action.
  
• Investigate the claim. Depending on the situation, an internal investigation or one conducted by outside counsel may be appropriate.  
  

Employers should also carefully consider their response. Common mistakes employers make in response to such claims or charges are that they:

• Leave out details and facts.
  
• Submit erroneous information.
  
• Justify the challenged employment decision on an incomplete or incorrect understanding of the facts. 
  

"These mistakes are often fatal to the employer's chances to prevail in a retaliation case, since counsel for employees will exploit these mistakes to show that the employer is not telling the truth," Moore said.

HR should be trained to recognize situations when retaliation is likely and take swift action to prevent it, such as separating supervisors and subordinates when the situation calls for it, or requiring additional approvals for actions taken by supervisors who have been accused of wrongful conduct, he added.

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