April 19, 2012
How to Avoid Employee Retaliation Claims

Employee retaliation claims can be particularly dangerous for employers—and they are on the rise. In this video, BLR legal editor Joan Farrell explains what retaliation is, what types of actions are considered retaliatory, why employee retaliation claims can be so dangerous, and--most importantly--what employers can do to avoid them.

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HR.BLR.com Editor Chris Ceplenski (CC): What is employee retaliation?

Joan Farrell (JF): Under federal fair employment laws like Title VII of the Civil Rights Act and the Americans with Disabilities Act, retaliation basically is an adverse action an employer takes against an employee who’s engaged in a protected activity. A classic example is firing an employee because he filed a discrimination charge.

CC: What types of adverse actions constitute retaliation in the eyes of the courts?

JF: There have been a number of court decisions over the past several years that expanded the scope of retaliation under federal fair employment laws. Several years ago, the Supreme Court ruled that retaliation includes any adverse action by an employer that would dissuade a reasonable worker from filing a discrimination charge – not just an employment action like firing or demoting. In one case, an employer had filed false criminal charges against a former employee—that’s retaliation even though it’s outside the employment context. In another case, the Court ruled that retaliation protection extends to an employee who reports discrimination during an internal investigation even though she didn’t initiate the discrimination complaint.

And more recently, the Supreme Court ruled that it’s unlawful retaliation when an employer takes adverse action against a person because he has a close relationship with an employee who filed a discrimination charge. In that case, an engaged couple both worked for the same employer. The woman filed a discrimination charge against the employer and her fiancé was subsequently fired. He sued claiming unlawful retaliation and the Court said yes, employees like a fiancé are within the “zone of interest” of those who should be protected from retaliation. So employers need to be aware of potential third-party retaliation claims.

CC: Retaliation claims are on the rise. Why do you think this is so?

JF: Yes, they are on the rise. In fact, last year, more retaliation claims were filed with the EEOC than any other kind of workplace discrimination claim.

As far as why, one reason is court decisions that broadened the coverage of retaliation protection, another is that employees often have more success with retaliation claims than other types of claims. What can be particularly frustrating for employers is that a retaliation claim can survive even when the underlying complaint of workplace discrimination is dismissed. That’s because the laws against retaliation aren’t tied to the substance of the discrimination claim, they’re tied to the action the employee takes in filing the claim. As long as an employee has a reasonable, good faith belief that he’s complaining about discriminatory conduct, it’s protected activity. And there are different legal standards for proving retaliation.

Generally, a person can establish a claim by showing that she engaged in protected activity--like filing a discrimination charge—she suffered an adverse employment action--like being demoted or fired, or unlawfully harassed—and there was a causal connection between the protected activity and the adverse action, meaning that the action was in response to the activity.

Often, the timing of the action is used as evidence of that connection. For example, if an employee is fired a week after his employer finds out that he filed a discrimination charge, he can point to the timing as evidence of a causal connection. Generally, the more time that goes by between the protected activity and the adverse action, the weaker the evidence becomes.

CC: So, what can employers do to avoid retaliation claims?

JF: There are several things employers can do.

  • First, they should have a written policy prohibiting retaliation and provide training to supervisors and managers about what retaliation is and how to avoid it.
  • Second, don’t fire employees when you’re fired up. Managers and supervisors need to understand that anger should not dictate employment decisions. Once a person has filed a discrimination claim, emotions can run high – employers sometimes feel that an employee is being disloyal and respond in ways that can constitute retaliation; and on the employee side, any negative actions by the employer are interpreted by the employee as retaliatory. Managers should do whatever it takes to cool down and stay cool. Part of their job is to act responsibly and professionally, even in the face of false accusations.
  • Third, provide training and refreshers so supervisors know how to react when they receive a complaint from an employee. A supervisor typically is the first person to receive harassment complaints from employees and his or her response is critical in resolving and defending workplace discrimination claims.
  • Fourth, apply policies and practices consistently. Selective enforcement of policies can support a claim of discrimination and retaliation, especially if enforcement is stepped up right after an employee files a complaint. If an employer departs from its usual policy or practice, the legitimate, nondiscriminatory reasons for the exception should be documented.
  • Fifth, publish your complaint reporting procedures. Post them conspicuously and encourage employees to report any retaliation using the same complaint procedure. Make sure there’s more than one avenue for reporting complaints so that employees can report inappropriate conduct by management without having to go to management.
  • Finally, follow up after an employee has complained to make sure there’s no retaliation.

Retaliation Resources

  • Policy Against Discrimination, Harassment, and Retaliation
  • Supreme Court decision on third-party retaliation
  • Termination
  • Retaliation Leads the Way in Workplace Discrimination

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