Workplace retaliation claims have become one of the most frequently filed claims in employment-related lawsuits. Retaliation appeared in 51.6 percent of all 2018 Equal Employment Opportunity Commission (EEOC) charges, prevailing over all other discriminatory bases to claim the top spot for the ninth year in a row. This comes as a surprise to many employers and often leaves them wondering where these claims come from and what they can do to fight the rising tide.
Numerous federal and state laws prohibit adverse actions against employees or applicants for alleging discrimination, harassment, or other violations of law by employers. These protections extend to employees who participate in protected activities or oppose unlawful practices by lodging complaints with their employers, filing charges/complaints with government agencies, participating in investigations, supporting others who have alleged prohibited conduct, or refusing to engage in prohibited conduct. Once an employee takes action, employers must take extreme care to avoid any perception the employee is being punished for exercising their protected rights.
This perception may arise when an employer takes an action that is materially adverse to the employee. Some adverse actions raise more suspicion than others, such as threats, demotion, discipline, termination, or salary reduction. However, some more subtle actions may still carry risk, such as giving a negative performance evaluation, failing to promote the employee to a new position, changing job or shift assignments, or even displaying “hostile” attitudes. For example, under Title VII of the Civil Rights Act of 1964, a materially adverse action may transform into retaliation if the action would dissuade a “reasonable” employee from filing a charge with the EEOC. Moreover, if the employee’s exercise of protected activity is a motivating factor in the decision to take the adverse action, it may be construed as retaliation regardless of the employer’s intent or whether the employee’s original allegation turns out to be unfounded.
How to Protect Your Company Against Retaliation Claims
While the potential for retaliation claims presents an ongoing challenge for employers, there are steps employers can take to protect themselves against retaliation claims and reduce their exposure once a claim has been filed.
1. Have an Anti-Retaliation Policy
Employers should ensure strong whistleblower and anti-retaliation policies are in place. Such policies should be all-inclusive. For example, make sure the prohibition of retaliation is not limited to the anti-harassment policy alone. As with any other policies that rely on employees coming forward, an anti-retaliation policy should include a reporting procedure informing employees how and to whom they should report perceived retaliation. Additionally, make sure all employees and managers are trained on the policy to reinforce the company’s commitment to adherence.
2. Investigate Complaints Promptly
One of the most important preventive measures employers can take is to conduct a prompt and thorough investigation of every employee complaint. Make clear that all reports are taken seriously and that the company will not tolerate any type of retaliation. Emphasize to employees that if they believe they have been mistreated in any way because of their participation in a protected activity, they should immediately contact management or HR to report concerns. If it is determined that a policy violation occurred, it should be dealt with in accordance with policy and consistent with company practice. Document every step of the investigation, including interviews, the gathering of evidence, conclusions, and steps taken to resolve concerns.
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3. Evaluate Adverse Actions
Employers are not prohibited from taking adverse actions for legitimate, nonretaliatory reasons. However, when an employee has made a complaint or participated in a workplace investigation, they may become hypersensitive to any criticism or personnel action afterward. It is not uncommon for employees to begin to view every interaction through a lens of fear and suspicion.
Before taking any adverse action, evaluate the potential for a meritorious retaliation claim by considering the proximity of the contemplated action to the employee’s complaint. The closer in time, the greater the risk it will be perceived as retaliatory. Make sure the action being considered is truly necessary and is consistent with company policy and practice. Moreover, if a comparable situation has arisen with other employees, ensure similar action has been taken.
It will be critical to have a well-documented performance history for the employee. If you wait until after a complaint is made to begin documentation, it will be far more difficult to refute an allegation that the sudden increase in documentation and any adverse action taken was punishment for having complained.
4. Watch for Red Flags
HR and management personnel should be aware of potential indicators of retaliation against employees who have engaged in protected activity. These red flags may include increased scrutiny of the employees by supervisors, coworkers ostracizing or excluding them from social interaction, inconsistent or increased performance expectations, or a sudden increase in negative documentation regarding the employee’s performance.
Interdepartmental communication is essential in detecting and avoiding potential problems and ensuring that any employment action taken in close proximity to an employee’s complaint is warranted and consistent with company practice. Supervisors and managers should be trained to recognize potential retaliatory conduct and know their role in prevention. Recognizing and remediating such conduct quickly can go a long way in preventing a formal complaint.
5. Follow Up
It is easy to inadvertently forget about an employee who has made a complaint once the investigation is complete and appropriate action is taken. However, it is essential to follow up with employees who have made complaints to ensure that no retaliation has occurred and there are no red flags that need additional attention. This is also a good time to make sure the activity that gave rise to the initial complaint has not reoccurred and that the workplace environment has remained free of harassment, discrimination, and retaliation.
The last (but certainly not least) piece of advice is to consult legal counsel. In the event your company is accused of having engaged in retaliatory conduct, consult an attorney experienced in workplace law as soon as possible to ensure your rights are protected.
However, prevention is better than cure. Consult with legal counsel before a retaliation claim to ensure your company’s commitment to maintaining a workplace free of retaliation is conveyed in both your policies and your practices.
This article is for informational purposes only and does not constitute legal advice.
Marilyn Higdon is a labor and employment attorney in the Fisher Phillips Memphis office. She can be reached at [email protected]