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Decision-maker who is in the dark about complaint may be best person to investigate misconduct
Employers often struggle with how to discipline an employee who has engaged in misconduct but who has also filed a complaint, such as a harassment or discrimination charge, without setting themselves up for a retaliation claim.
An HR professional who is unaware of the complaint could investigate the employee's performance before the manager disciplines the worker to reduce the chances of a retaliation claim, recommended Daniel Kaufman, an attorney with Michael Best & Friedrich in Chicago. "Then if discipline is imposed, the company is able to say that someone who was not aware of the claim reviewed the misconduct," he said.
Retaliation cannot be shown without establishing that the decision-maker—or someone who influenced the decision-maker—knew of any protected complaint activity, the Equal Employment Opportunity Commission (EEOC) notes in its Aug. 29, 2016, guidance on retaliation.
Other ways an employer can disprove retaliation, according to the EEOC in its guidance, include reliance on:
The agency's examples of what constitutes unlawful retaliation range beyond termination and discipline to include such actions as:
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