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What You Must Do to Prevent Retaliation Lawsuits

Training
by Stephen Bruce, PhD, PHR

In yesterday’s Advisor, we featured attorney Michael Faillace’s suggestions for avoiding the first prong of retaliation charges. Today, the second and third prongs, and an introduction to an extraordinary 10-minute-at-a-time training program.

Faillace, managing partner of Michael Faillace & Associates in New York City, offered specific steps HR managers can take to prevent retaliation at a recent Society for Human Resource Management (SHRM) conference,

Adverse Action, Prong #2

[Go here for prong 1]
The second element of a retaliation case is adverse action. What constitutes an adverse employment action?

For sure, says Faillace, employment actions such as the following, denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge are adverse actions.

The EEOC also includes threats, reprimands, negative evaluations, harassment, or other adverse treatment, but the federal courts don’t always agree on these points.

Actions that have been found not to be adverse actions include:

  • Making vague or isolated remarks about protected activity
  • Contesting unemployment compensation
  • Complaining about undesirable work assignments.

The EEOC and courts may also define adverse action more broadly as an action “reasonably likely” to deter charging parties from engaging in protected activity.

Best Practices for Avoiding Adverse Actions

Faillace offers the following best practice suggestions for avoiding adverse actions:

  • Create and implement a specific anti-retaliation policy
  • Train managers and supervisors
  • Prior to taking any adverse actions against employees:
    • Interview managers, noting any possible protected activity
    • Ensure legitimate reasons exist for taking the adverse action
    • Consult with your legal department or outside counsel.

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Causal connection, Prong #3

The third element of retaliation claims is the causal connection. That is, the employee must show that the employer took the adverse employment action because the plaintiff engaged in the protected activity. In addition, the suing employee must show that the protected activity preceded the adverse action and that the employer had knowledge of the protected activity.

Sometimes the causal connection is shown by direct evidence, such as e-mails, and sometimes by indirect evidence, for example, time proximity (e.g., fired the day after lodging a complaint).

Escaping Liability

Once a claim against an employer is established with the three elements discussed above, the employer may defeat it by producing evidence that the employer had non-retaliatory reasons for its action. For example:

  • Insubordination
  • Refusal to perform assigned work
  • Failure to get along with others
  • Violence
  • Business reorganization
  • Misconduct

Retaliation Tips

Faillace furnishes additional tips for avoiding an inference of retaliation:

  • >Carefully document performance problems. Progressive discipline records will help suggest that no retaliation took place.
  • Ensure that documentation is consistent with employee’s employment history. Be especially wary in situations that show a sudden drop in performance.
  • Treat complainants like other employees to negate an inference of retaliation.
  • Do not order surveillance on employees who have complained. That can constitute an adverse action and is unlawful if conducted because of the protected activity.

Retaliation—one of, what, a couple dozen things your people need training on now? Training is critical, but it’s also demanding. To train effectively, you need a program that’s easy for you to deliver and that requires little time from busy schedules. Also, if you’re like most companies in these tight budget days, you need a program that’s reasonable in cost.

We asked our editors what they recommend for training supervisors in a minimum amount of time with maximum effect. They came back with BLR’s unique 10-Minute HR Trainer.


Train your line managers with BLR’s 10-Minute HR Trainer. There won’t be time for classroom boredom. Try it for free.


As its name implies, this product trains managers and supervisors in critical HR skills in as little as 10 minutes for each topic. 10-Minute HR Trainer offers these features:

Trains in 50 key HR topics under all major employment laws, including manager and supervisor responsibilities, and how to legally carry out managerial actions from hiring to termination. (See a complete list of topics below.) Uses the same teaching sequence master teachers use. Every training unit includes an overview, bullet points on key lessons, a quiz, and a handout to reinforce the lesson later.

Completely prewritten and self-contained. Each unit comes as a set of reproducible documents. Just make copies or turn them into overheads, and you’re done. (Take a look at a sample lesson below.)

Updated continually. As laws change, your training needs do as well. 10-Minute HR Trainer provides new lessons and updated information every 90 days, along with a monthly Training Forum newsletter, for as long as you are in the program.

Works fast. Each session is so focused that there’s not a second’s waste of time. Your managers are in and out almost before they can look at the clock, yet they remember small details even months later.

Evaluate It at No Cost for 30 Days

We’ve arranged to make 10-Minute HR Trainer available to our readers for a 30-day, in-office, no-cost trial. Review it at your own pace and try some lessons with your colleagues. If it’s not for you, return it at our expense. Click here and we’ll set you up with 10-Minute HR Trainer.

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