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.

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