What if an employee complains about harassment, but you investigate and find no evidence of harassment? Or, what if an employee files a complaint with the Equal Employment Opportunity Commission (EEOC) alleging discrimination, but the EEOC also does not find any wrongdoing? Can you fire either of these employees for making false claims?
The short answer is: probably not. As long as the claims were brought in good faith (i.e., not made up), the employee has a right to complain—to you or to the relevant government body—about discrimination and/or harassment even if those claims do not result in any negative actions. As long as the employee was acting sincerely, he or she is within his or her rights to make such a claim and is legally protected from retaliation. In other words, retaliatory actions are illegal regardless of whether the claim ended up resulting in findings of wrongdoing.
What Constitutes Retaliation?
Essentially, retaliation can come as almost any adverse activity against an employee that is a direct or indirect result of his or her protected activity—even if it occurs at a much later time. This could include but is not limited to things like being punished for actions that employees wouldn’t normally be disciplined for, being looked over for a promotion, not being given a good assignment that the individual was otherwise qualified for, being denied a raise without other reasoning, being demoted or fired, etc. Any type of action that would reasonably make someone think twice about bringing their own claim would probably qualify as a retaliatory action. This last point was the raised in the EEOC guidance from August 2016, which states:
In light of the purpose of anti-retaliation protection, it expansively covers any employer action that “might well deter a reasonable employee from complaining about discrimination.”[i]
And remember, it’s not just the employee who made the claim who is protected by the law. Anyone who participated in the investigation is also protected—they cannot be retaliated against for helping.
As you can see, retaliation can take many forms, and that’s a big reason why the risk is high. A manager may think he or she is in the clear if he or she feels justified in taking some type of adverse action against an employee for an unrelated issue. But this is where it can be tricky—if the employee is penalized in some way that is inconsistent with how others in the same situation were treated, it could still look like retaliation, even if the issue truly is separate.
For example, if an employee files a harassment claim and 3 months later is written up for being late to work too often—yet no one else who was late just as often gets any type of disciplinary action—that could easily appear to be a form of retaliation, even if the employee’s actions really were against the rules.
Also remember that the employee could make a claim of retaliation even if the adverse action taken by the employer truly was justified, unrelated, and consistent with how others are treated. If it is perceived as retaliation, there’s a risk. In other words, even if you’re in the right, you may still need to defend yourself.
Given this situation, it’s best to avoid scenarios in which retaliation claims may be made because retaliation against an employee after he or she made a good-faith claim of discrimination or harassment is illegal. This is true regardless of whether the complaint was made to the employer or to a governing body, and it’s true regardless of the outcome of such a claim. Avoiding a retaliation claim can be tricky, however, because employers must be concerned not only about overt retaliation but also about actions that could appear to be retaliatory—even if they’re not.
Let’s take a look at some tips to avoid retaliation claims:
- Have a formal antiretaliation policy. Ensure it is part of the regular policies that everyone is aware of.
- Train everyone involved in hiring and employment decisions that it is illegal to retaliate against someone on the basis of that individual exercising a protected right.
- Training should also be held on handling protected activities. For example, everyone involved should understand how to handle a harassment or discrimination claim. Getting these activities right will go a long way toward avoiding retaliation problems later.
- Ensure that those involved in any investigation try to balance being thorough with being discreet. The issue here is that it’s ideal if as few people as possible are involved to minimize the risk of inadvertent retaliation later. Train those involved in investigations to maintain confidentiality of claims to the extent possible—without sacrificing the completeness of the investigative process, of course.
- Consistency in employee treatment is critical. This point cannot be restated often enough. Inconsistencies in how similarly situated employees are treated create highly risky situations that are likely to open up the organization for possible complaints. This statement is true, even if there’s no ill intent.
- Along with consistency comes consistent and thorough documentation. Documentation should be standard for any type of action related to an employee—and it will help you if you need to defend any action, as long as your documentation shows that employees were treated fairly and with consistency.
- Remember to evaluate the consequences of any action you take in an effort to fix the original problem. For example, if someone files a complaint, and the team opts to transfer him or her to another shift, location, or department in order to take that individual out of the problematic environment, that may seem like a solution that works well for everyone. But if that solution is less desirable for the complainant, it could actually be seen as a form of punishment (read: retaliation) for making the complaint. In other words, just because the retaliatory act may have been unintentional doesn’t mean you’re legally protected. Ensure those involved in these decisions understand this, and do not take these types of actions without ensuring that they’re not adverse for the complainant.
- Be proactive over time. Sometimes, retaliatory behavior can fly under the radar. It may come in the form of subtle harassment or seemingly minor issues that may go unreported. Consider having a policy of always checking in at regular intervals with any individual who previously filed a claim; ask that person how things are going, and try to get a sense for whether they’re experiencing any negative issues. Doing this can help you discover any potential problems before they rise to the point of becoming a retaliation claim.
- Be sure that everyone is on the same page if any adverse actions are taken that are unrelated to the original claim. Consider having more than one level of review before any such actions are taken. For example, consider reviewing any disciplinary action unrelated to the claim to ensure that this action is not harsher than the disciplinary actions taken for other employees in that situation in the past. Taking adverse actions that are entirely unrelated to the original claim and that are completely in line with how other similarly situated employees have been treated should be OK, but be sure to document well in case a claim is raised. That will help you defend any actions taken.
Have you had to defend yourself against a claim of retaliatory behavior by an employee? What lessons or tips would you add to this list?
[i] https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm#1._General