Retaliation Claims 101: What Every Employer Needs to Know

An employee speaks up about a workplace problem, and you take action. Suddenly, you’re facing a retaliation claim. Even well-meaning employers can find themselves on the wrong side of the law if they don’t handle complaints carefully, including after the initial investigation is closed. 

“Attorneys love retaliation claims,” said R. Lance Witcher, an attorney with Ogletree Deakins in St. Louis, during a U.S. Equal Employment Opportunity Commission (EEOC) training workshop on July 22 titled “Workplace Equality and Accountability: Practical Strategies to Prevent, Investigate, and Defend Harassment and Retaliation Claims.” Because the courts have broadly construed retaliation, it has become an attractive claim to pursue among employment lawyers seeking punitive damages, he explained. 

Most employment statutes strictly prohibit retaliation, which occurs when an employer “takes a tangible employment action against an employee because that employee previously engaged in a protected activity,” Witcher said. Protected activity includes complaining about unlawful discrimination, as well as engaging in a discrimination or harassment investigation. 

“Retaliation is such a natural reaction,” Witcher explained. “Plaintiffs’ attorneys know that” and are well-versed in hunting red flags that may work in their clients’ favor in court. According to Witcher, retaliation is one of the easiest claims to prove, and some 45% of EEOC charges include a retaliation component.

Best Practices to Reduce Risk of Retaliation

To reduce their risk, employers should ensure their policies and procedures address retaliation and harassment. Not only should the company’s position be clear to employees, but employers must train managers “so they understand they have an obligation,” Witcher said. 

Sample Policy: Nondiscrimination/Anti-Harassment Policy and Complaint Procedure

When a worker submits a complaint, the employer must weigh whether to use an internal or external investigator. “It might be much better to use an external investigator” when the allegations are very serious or concern someone high up in the organization, Witcher said. If using an internal investigator, he recommended that employers assign two individuals to avoid any risk of bias claims. 

It is important to separate the accuser and the accused in a nondiscriminatory way. To ensure the accusing employee is satisfied with any move involving them, the employer should seek their consent first. “Without buy-in from the complainant, transferring them could be seen as retaliation,” Witcher cautioned. 

The end of an investigation does not signal the end of an employer’s responsibilities. There should be regular follow-ups with the complainant. Witcher suggested checking in with the employee “one week out, two weeks out, then maybe switch to three weeks out,” recording all communication during this time. 

As a rule, employers should maintain a comprehensive paper trail that can serve as a defense if need be. “Ensure all communications reflect an effort to resolve the issue,” Witcher said. 

How-To Guide: Conduct a Workplace Investigation

Discipline After a Complaint  

After an investigation, employers may be wary of disciplining complainants for fear of a retaliation claim. Witcher recommended caution before making such decisions. “Have multiple people vet any planned discipline against a worker who has complained,” he said, and guarantee that any punishment is consistent based on past situations with other workers. 

Documentation is the best defense. “If we’re not documenting their performance deficiencies,” juries will be inclined to think it’s a case of retaliation, Witcher said. In fact, the vast majority of jurors “believe a company is negligent if they are not documenting an employee’s problems.” 

That said, employers should make sure that documentation is not repetitive or petty, and that it is free of emotional language. “Use objective metrics” to avoid evaluating subjectively, Witcher said. 

Above all, employers should beware temporal proximity — acting too soon after an employee files a complaint. “If it happens quickly, people are going to think you’re retaliating,” Witcher explained. 

Proper Documentation

Should an employer be taken to court over a retaliation claim, proper documentation will be their best chance of success. “Who has the best documentation and the most likable and credible witnesses wins,” Witcher said. Though documents are not legally required, contemporaneous documentation improves an employer’s credibility by showing the legitimate bases for their actions. 

But just as documentation can act as a life preserver, it can also sink an employer’s ship when not done correctly. Witcher provided some examples of common errors to avoid when documenting complaints and efforts to resolve them:

• The use of “I think” and “I believe.”
• Speculation/hearsay. 
• Exaggeration. 
• Joking or sarcasm. 
• Disclosing advice from counsel. 
• Treating email as conversations and not written documents. 

Presentation: Documenting Employment Actions

Responding to Charges

When preparing a response to an EEOC charge, employers should present their side of the story, clearly explaining the legitimate nondiscriminatory reason for each adverse employment action. Witcher recommended including a “golden paragraph” that points out inconsistencies or misrepresentations in the employee’s complaint. It should also highlight the company’s policies and training, with key documents attached. 

Accuracy is essential. “One minor discrepancy can raise suspicions of other discrepancies,” Witcher cautioned. “Discrepancies between reasons for the challenged employment decision articulated in the EEOC position and other testimony or evidence” will be used by the employee’s lawyer to diminish the employer’s credibility. For example, if an employee’s termination letter cited “changing business direction,” but at trial, the employer blames poor work performance, this inconsistency will work against the employer. 

Litigation Readiness

Should a retaliation claim arise, employers must ensure document retention or risk losing a case before it begins. “Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold,’” Witcher said. 

Employers should preserve, at minimum, the following documents:

• Staff, payroll, and medical files.
• Supervisor files.
• Investigation file.
• Electronic files, including emails.
• The charging party’s electronic files.

It is important to take actions “not to destroy documents” to avoid a spoliation argument, Witcher said, which is a claim that the employer has altered or disposed of evidence If an employer fails to preserve information, it could result in penalties, exclusion of evidence at trial, dismissal or default judgment, or criminal penalties, among other consequences.