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Retaliation doesn’t have to involve disciplining or terminating an employee. It can take on subtler forms, such as avoiding the worker, according to Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City.
The Supreme Court has clarified that retaliation is not limited to adverse employment actions but also may include changes to the terms and conditions of employment. “This could include, for example, excluding someone from important meetings and communications,” Segal noted. “Or, it could include avoiding any conversation unless absolutely necessary.”
Overly Sensitive Supervisors
Ironically, a supervisor may avoid a worker in an attempt not to retaliate against the employee.
“Retaliation cases are so common that managers are appropriately sensitive to them,” Segal said. “But the sensitivity can go too far.”
The supervisor, understandably fearful that anything he or she says may be misperceived, may deliberately not say anything to the employee, for example.
While a supervisor should be more thoughtful about what he or she says if a claim has been filed against him or her, that does not mean avoiding the complainant, Segal stressed.
“The avoidance may be retaliation if it has a material adverse impact on terms and conditions of the employee’s employment—that is, the ability to do his or her current job or grow into another job,” he explained.
Ashley Eley Cannady, an attorney with Balch & Bingham in Jackson, Miss., noted that “When an employee complains, the knee-jerk reaction is often to avoid the employee to insulate yourself from further allegations.
“Sometimes leaving an employee alone is exactly what the employee wants, especially, for example, where their complaint is about unwanted attention of a sexually harassing nature.”
But in other cases, avoidance can be the basis for retaliation, she added. “Such claims—cold shoulder, ostracism, etc.—are limited only by the imagination of a good plaintiff’s attorney.”
Her recommendation? “Do not treat the employee any differently than they would be treated but for their protected conduct, such as the filing of a complaint or the voicing of opposition to an allegedly unlawful activity.”
She noted that common ostracism allegations include claims that:
Exclusion from Socializing
Exclusion from social interactions may be a form of retaliation, too, if employees go out for drinks or other social activities but spend that time strategizing about business plans.
“Excluding the complainant because of her complaint could limit her opportunities and, therefore, arguably be unlawful,” Segal said. “Sometimes the manager underestimates how important social inclusion is. Those who are excluded do the opposite.”
Today the line between work and life has blurred.
“The same is true with professional events and social events that are work-related,” he observed. “Bonds are formed, information is shared and indeed sometimes decisions are made, for example, in a bar, on the golf course or at another social venue.”
What HR Can Do
“HR can and should play a key role in helping the ‘accused’ interact professionally with the complainant,” Segal said.
For example, training for supervisors should emphasize that steering clear of someone who made a discrimination claim or other complaint is not an effective way to avoid a retaliation claim.
Some HR departments conceal the information from managers when a subordinate participates in protected activity, where circumstances permit, so that the manager’s actions cannot be tainted by any potentially retaliatory or unlawful motive, noted David Thomas, an attorney with Balch & Bingham in Jackson, Miss.
If that approach is not taken, Thomas recommended that employers train managers that any type of retaliation is unlawful and against company policy.
“When a discrimination claim is pending, managers should be even more sensitive and aware than usual that their words and their actions may be subject to scrutiny, and they should be diligent to ensure that their actions are equitable and fair to all employees without regard to any protected characteristic or protected activity,” he observed.
Even if excluding an employee from social events or avoiding him at work is not enough to show a material change to the terms and conditions of employment, these types of activities still may be used as evidence of retaliation in a claim where there is a tangible adverse action.
Suppose, for example, someone who has brought a complaint is denied a promotion and claims that the denial was retaliation. “To the extent the decision-maker has avoided him at work and excluded him from social functions, such exclusion may be admissible as evidence as to the motivation as to why the employee did not get the job,” Segal noted.
“It is human to be upset when someone has alleged you have done something wrong,” he added. Supervisors should “be consciously aware of that human tendency and rise above it. Don’t give someone who has no viable claim a viable claim by avoiding them.”
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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