Why Stopping Retaliation at Work Is So Tricky

Adam worried that a dangerous chemical was being used without proper protection, and he reported it to Cal/OSHA.

His boss, Stephanie, was not happy. “Adam’s wrong,” she said. “There’s nothing unsafe about our process. And I’m miffed he didn’t come to me first. I guess he’s not the team player I thought he was. He’s not going to get that promotion after all.” Retaliation? 

Meanwhile, up in Accounting, MaryAnn took FMLA leave at “crunch time” to care for her sick mother. A month later, MaryAnn didn’t get the raise that others in her department did. Retaliation?

Do these scenarios depict retaliation? The first case certainly seems to. In the second case, it’s not clear. There is no direct evidence of retaliation, but there is an appearance of retaliation. Bottom line, the organization is likely to see a retaliation lawsuit from one or both of these situations.

Unfortunately, retaliation is a natural reaction. No manager or supervisor wants to deal with unwarranted government investigations or have to cope with the absence of a top employee at a particularly busy time. But managers and supervisors must learn to resist the urge to retaliate. The lawsuits are simply too expensive.

Avoid the “Big 3” of Discrimination, Harassment, and Retaliation: Webinar 7/28.

What Is Retaliation?

Retaliation occurs when employers take action against an employee – such as firing, demotion, or denying a raise or a promotion — for doing something the employee had a right to do (or a right not to do).

You are not allowed to retaliate against an employee for taking various protected actions, including:

• Participating in civic duties, such as voting and jury duty
• Reporting unsafe conditions in the workplace
• Reporting and/or refusing to participate in illegal activity
• Taking medical leave
• Filing a workers’ comp claim
• Requesting reasonable accommodation under the ADA
• Complaining about harassment
• Participating in certain union-related activities
• Taking military leave

Protect your workplace from devastating retaliation claims.

Secondary Claims

Often a retaliation claim is secondary to another claim. The employee sues for sexual harassment, and then claims that he or she was retaliated against for having filed the claim. Surprisingly, the retaliation claim is often upheld even when the main claim is not.

Why? Juries easily grasp the idea of retaliation and they are sympathetic to the employee. Also, employers often have solid evidence to refute the original claim, but have weaker evidence to refute the retaliation claim.
Appearance of Retaliation

Many retaliation charges are based almost entirely on unfortunate timing. For example, an employee requests leave, files a sexual harassment charge, or makes a Cal/OSHA complaint. Two weeks later he or she is fired and charges retaliation.

Now you’ve got a tricky task to prove your case. If your documentation and reasons for the firing are not airtight, you’ll have a difficult time convincing a jury that the firing wasn’t retaliation.

Nip the “Big 3” in the Bud

California employers get hit hard every year with an avalanche of “Big 3” legal trouble — discrimination, harassment, and retaliation complaints lodged with state investigators or filed as lawsuits by attorneys representing workers.

These claims pose tremendous legal and financial risks:

• They’re tough to prevent — and even more difficult to defend.
• Even if you win the legal battle, you’re facing major damage to your reputation and workplace morale.
• And if you lose, you could be on the hook for enormous penalties and payouts.

Plus, California enforces the broadest, most employee-friendly rules governing discrimination, harassment, and retaliation in the country (with big differences from the federal standards employers in the other 49 states typically follow).

Learn the very latest strategies for dealing with the “Big 3” in California during this 90-minute webinar on July 28 — next week! – with the help of our expert speaker, an experienced California-based employment attorney. You’ll learn:

• The current definitions of “discrimination,” “harassment,” and “retaliation” as they apply in California
• Why discrimination, harassment, and retaliation claims — the “Big 3” — represent triple-whammy liabilities for employers operating within the state
• Which key California statutes and regs apply in Big 3 cases (starting with the Fair Employment and Housing Act)
• The most critical (and surprising) differences between federal and California rules in Big 3 matters — from uncapped damages in discrimination claims to individual liability for supervisors or employers who harass their workers
• What additional protected bases California workers enjoy above and beyond federal categories (including marital status, veteran status, gender appearance, and sexual orientation)
• The practical steps you should take right now to prevent — and to protect your organization from — discrimination, harassment, and retaliation claims (including sample policies that you can customize for your workplace)
• What you should do immediately (and what you must never do!) when you’re hit with a Big 3 claim

This webinar is exclusively available to our CEA Online subscribers. If you’re already a CEA Online subscriber, and would like to attend this webinar free of charge, please click here to register.

If you’re not already a CEA Online member, you can sign up for a full year of membership — including 12 subscriber-only webinars like this one every year — for just a little bit more than what it costs to attend a single webinar. For a rundown of all the benefits of CEA Online membership, including our 100% satisfaction guarantee, click here.

Download your free copy of How To Survive an Employee Lawsuit: 10 Tips for Success today!