How can a retaliation claim be an expensive mistake for an employer? Imagine that you get to work for the day, open your email, and see an email from the Equal Employment Opportunity Commission (EEOC). You click on the email to find that a federal agent is contacting you with unwelcome information. The email states that one of your employees has filed a charge of discrimination with the EEOC. The charge names you as the individual who has discriminated against the employee and puts you on notice of a pending investigation.
A great way to start the day! No one likes to feel like they are in trouble for something. You might react with fear and trepidation about what this might mean for you and your business. You might feel offended and even angry, thinking perhaps how unfounded this is. If anything, there may have been a misunderstanding. Whatever the reason, and whatever you feel about it, it is crucial in a moment like this that you, along with any of your supervisors, proceed cautiously and with the highest level of professionalism to avoid an additional claim of retaliation.
Retaliation Claims Are the Greatest Legal Risk
Would you believe that retaliation claims are the greatest legal risk for employers and, on the flip side, are the easiest to prevent? Whether the allegation is true or not, it is normal to become offended and defensive, consciously or not, to begin treating that person differently. It is normal to want perhaps not to be around them anymore. Whatever the rationale, the problem is that all too often, employers and supervisors tend to sink to a lower level and take adverse action against the complaining employee and treat them differently. That’s an expensive mistake!
Legally Protected Activity
Employees are free to complain about an illegal activity without fear of losing their job. So, what exactly is retaliation? Retaliation happens when an employer punishes an employee because that employee engaged in legally protected activity. The legally protected activity involves two things:
- Filing a complaint, informal or formal, or
- Participating in an investigation that involves such a complaint.
What does this mean? A complaint alleges retaliation for either complaining about something like discrimination (or another legally protected activity) or because the individual was a witness for a co-worker’s investigation complaint (or another legally protected activity).
This is important to understand because the person filing a claim of retaliation does not have to be the one who originally filed a complaint of discrimination in the first place. For example, if another employee is interviewed as a witness, they share information that makes you look bad. Then you “punish” them somehow. That counts as prohibited, discriminatory retaliation.
Retaliation actions allow employees to feel protected from making complaints of discrimination and speak up as a witness when they see things that are not right.
Proving Retaliation, an Expensive Process
A claim of retaliation can be expensive to defend. It can also be frustrating to employers because the truth of the original complaint does not matter. What matters is that the complaint was made in good faith and what your response to the complaint was after. An employee can show that there has been retaliation by the employer with evidence, such as the employer saying something like, “since you made that complaint, I am going to fire you.” That would be pretty straightforward, but as you can imagine, that does not happen very often.
Without direct evidence, a retaliation claim becomes more time-consuming and expensive. As you can imagine, this process requires a lot of digging and investigation, which amounts to time, disruption to your workplace, and legal fees, whether or not the employer prevails in the lawsuit. In addition, if the Court finds retaliation in the employer’s actions, there is the certainty of additional fines and sanctions against the employer. It is best to avoid these claims from happening in the first place.
Actions That Might Constitute Retaliation
Here are some examples of the actions that you need to be careful to avoid if an employee has made a complaint of discrimination and/or participated in the investigation of a discrimination complaint:
- Firing or demoting them
- Denying a raise
- Transferring to a different position or maybe a different location
- Forcing them to switch jobs or maybe to a shift that is less favorable to what they have now.
- Excluding them from a training or a mentoring event
- Excluding them from staff meetings on a project they have been working on.
- Giving them unfair or unexpected poor performance reviews
- Spreading false rumors about them
- Treating their family members in any negative way
- Making their work more difficult
What if some kind of “adverse” employment action is necessary?
Have you heard the phrase, “Walking through a minefield?” That is what we are talking about here. If you legitimately need to move the employee, fire them, give a poor performance review, or anything of that nature, PROCEED WITH CAUTION! If you find yourself in this situation, you should contact an attorney.
Before you take any adverse action that may be perceived as punishment, please consider the TIMING of it. The court will focus on when you took the adverse action concerning the protected activity. The shorter the time, the stronger the evidence and inference of retaliation. Without some other evidence, timing alone is generally insufficient to prove retaliation.
Documentation Will Be Key
So, if you find yourself in this situation, take special care to document your reasons for any “adverse” action. Be conscious about the timing of your actions, realizing that the court will be suspicious if the timing is close between the complaint and the subsequent action taken. Seek legal counsel early to help you navigate a situation like this so that you can protect yourself from a retaliation claim.
Finally, recognize the importance of clear policies prohibiting retaliation and providing training for yourself and your supervisors to prevent these natural tendencies from getting you in trouble.