Claims of workplace retaliation are a growing concern for employers. Reportedly, 56% of all claims filed with the Equal Employment Opportunity Commission (EEOC) dealt with retaliation. A charge of retaliation and a win for the employee who files the claim can be a huge financial hit to any organization, especially a nonprofit whose funding and resources are typically limited. It is critical that education and training on retaliation and implementation of anti-retaliation policies become standard in your organization.
Retaliation, as defined by Webster’s Dictionary is revenge, or the seeking out and repayment of action like for like. Retaliation in the workplace is specifically linked to an employer’s conduct towards an employee after that employee has filed something as simple as a complaint or something as large as a claim of discrimination.
It is illegal for employers to retaliate against employees because they reported or opposed a workplace health or safety violation. This encompasses a wide range of areas from race, sex, religion, and any occupational health and safety issues. Even if a comprehensive investigation takes place and no evidence is found to support the claim of workplace discrimination or harassment, that in no way frees the employer from their obligation to not retaliate against the employee who filed the complaint.
The U.S. Supreme Court has declared that any negative act towards the complaining employee can constitute retaliation if that action would be enough to dissuade a reasonable employee from making a complaint under similar circumstances.
A simple example: Susan reports to her supervisor that the sexual innuendos and questions about her private life asked by the men in her department make her feel uncomfortable. After she makes this claim, Susan is transferred to a different department, with less responsibility and a decrease in pay. Susan now has two justifiable disputes with her employer: (1) sexual harassment and (2) retaliation.
The laws that prohibit discrimination within the work environment also prohibit retaliation by an employer against an employee who has claimed discrimination under those same laws. Employees have protection from retaliation for:
- Reasonably exercising employee rights under the law.
- Reporting alleged employer violations to a supervisor, Human Resource (HR) Department, or to the authorities, either through the proper enforcing government office or through an attorney.
- Participating in proceedings under the law, as a plaintiff or a witness.
Susan was exercising her right to work in an environment free of discrimination and harassment. Unfortunately, Susan’s employer decided to move her within the organization without keeping her job duties and income the same. Susan was punished or retaliated against for reporting a workplace violation, and by doing this, her employer’s actions would be considered retaliation.
Once the initial claim has been filed, any actions made towards the employee may be construed as retaliation. Some adverse employment actions that could be considered retaliation:
- Termination of employment
- Demotion or lack of promotion
- Alteration of job responsibilities
- Salary or benefit changes
- Changes to less appealing hours
- Job title change
More complex examples of illegal retaliation include:
- Refusing to hire an employee because they sued their previous employer for discrimination.
- Removing an employee from their office and giving them a less attractive workspace because they took a legally protected leave of absence.
- Giving an unwarranted negative performance review to an employee because they complained about unfair pay practices.
- Excluding a person from meetings or business lunches because they claimed certain sales practices were illegal.
- Allowing rudeness, exclusionary behavior, criticism, bullying, and actions to embarrass the employee into quitting because the employee reported discrimination.
Complications can arise when the employee who has filed the discriminatory complaint has a record of disciplinary issues. Before the discrimination claim was made, what might have constituted a legitimate reason for not promoting this employee may now be viewed as an act of retaliation.
Communication is, as always, a key component to preventing a retaliation charge. The process begins when an employee makes the first notification of any discrimination claim. No matter how this employee has acted in the past or whether you believe it’s a false claim or not, document everything. Communicate with the employee making the charge that a thorough investigation will occur. Further decisions regarding this employee must be made with the purest intent of upholding their rights and documenting all communications and interactions with the employee.
Good documentation is your best defense. All employer actions will be highly scrutinized. If your organization practices progressive discipline, make it clear that any disciplinary actions are performance-related following standard procedures. Ensure you treat this employee the same before and after the claim was filed. Keep communication open between the employee and their supervisor. Following these suggestions, you will have a strong base against a retaliation charge. Any holes in your documentation process will create an opening for even the slightest question of retaliation. It will be harder for you to prove your actions as appropriate and not as actions of retaliation.
Another important and key tool is to educate and train all supervisors to recognize possible retaliatory conduct. Retaliation can be very subjective, and sometimes good management decisions appear as retaliation to the employee. Transferring an employee to an equivalent position in a new department or program may be a wise solution, however, it may feel retaliatory to the employee who feels cut-off from friends and familiar co-workers due to the move.
Next time, we will provide ways to prevent retaliation issues in your office before they happen. For more information and help about retaliation, visit www.eeoc.gov or www.eeoc.gov/laws/guidance/retaliation-qa.cfm
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The information contained in this article is not a substitute for legal advice or counsel and has been pulled from multiple sources.