CEDR Two Minute Trainer: Retaliation, The Ever-Broadening Trap

What is Retaliation?

In an employment setting, retaliation means “getting back” at an employee for making trouble. More specifically, it means taking action against an employee because he or she participated in “protected activity” or opposed an unlawful employment practice.

For example, Employee Tom complains that his supervisor is discriminating against him because of his age. To avoid conflict, the boss moves Tom to the night shift with a different supervisor. Tom now makes a retaliation claim, on the grounds that his supervisor not only discriminated against him because of his age, but the boss also discriminated against him when he moved Tom to a less desirable shift for complaining about the age discrimination.

Retaliation is like bitter icing on a bad cake, and it comes in many forms. Several different federal and state statutes prohibit discrimination. You need to have a good grasp on what protected activity is to avoid a problem.

What employee activities are protected?

• When an employee opposes an unlawful practice, by complaining or making an official charge, for example.
• Participating in an investigation, claim, or hearing about alleged unlawful conduct. Examples include giving a statement in a co-worker’s harassment complaint; writing the EEOC for assistance; or, internally complaining of discrimination or reporting discrimination to a federal or state regulatory board.
• Unlawful activity may be any activity prohibited by any of the fair employment laws, including Title VII, ADEA (age discrimination), ADA (disability discrimination), the Equal Pay Act, and FMLA.
• Whistleblower laws also protect an employee’s right to challenge employer conduct prohibited by other statutes, public policy, and/or case law. Examples of prohibited employer conduct involve wages, overtime laws, break period laws, OSHA violations, etc.
• The subject of the complaint can involve the complaining employee or another employee, but the retaliation must be directed to the complaining employee, or an employee closely related to him/her (such as a spouse).

What kind of actions could be retaliation?

Illegal retaliation includes termination and other employment actions, such as suspension, demotion, altered work schedules or assignments, and negative performance evaluations. Most recently, the Supreme Court held that giving a negative reference about a former employee who complained of discrimination also could be considered retaliation.

How do I avoid a retaliation claim?

Document, document, document! The best possible protection against a retaliation claim is a written disciplinary record demonstrating there were legitimate and non-discriminatory reasons supporting your employment action. You need to show, through your handbook and personnel file, that you had a clear, understandable policy or performance expectation that you communicated to the employee, and that you consistently applied those policies and standards in the case at hand. In other words, you need to show the termination or other action was warranted, not imposed as a pretext, and was consistent with past practice and your treatment of others.

Practice patience. You should wait six months to take any action. You can’t take those six months to the bank, but in general, most courts consider adverse action taken against an employee within six months after he or she complained or participated in a complaint suspicious and likely retaliation.

Investigate. Make sure you promptly and thoroughly investigate any employee claims of unlawful activity. Have them put it in writing. Do not permit anyone to respond to the claims in anger, or without getting advice from an expert, such as someone in the CEDR Solution Center. It is important that you consider your next move carefully, before you act against a protected employee.

Update your policies. If you get sued, your employment handbook must have a policy against retaliation. This will give you a huge advantage in the event of a lawsuit, because it forces the employee to prove his or her case, rather than forcing you to defend yourself. In other words, a policy against retaliation makes it harder to sue and harder to win. Considering the benefits of this simple policy, it’s shocking how many employers fail to include it in their handbooks. If you have a CEDR Handbook, of course, you’re covered.

It’s still up to you to use this information wisely, and avoid taking action that could invite a retaliation claim against you. As always, call the CEDR Solution Center with questions.

That’s it for today’s 2-Minute Trainer. Now, go have a productive, lawsuit-free day!