Retaliation suits may be dumb, but they happen with increasing frequency. What should HR do? Here are tips from attorney Joan S. Farrell, BLR Legal Editor:
- Have a written policy. As the backbone for your anti-retaliation program, initiate a policy prohibiting retaliation (see sample below)
- Provide training. Just having the policy isn’t enough. Provide training to supervisors and managers about what retaliation consists of and how to avoid it. (Basically, retaliation is any action that would dissuade a reasonable worker from engaging in protected activity).
- Don’t fire employees when you’re fired up. Managers and supervisors need to understand that anger should not dictate employment decisions. Managers should do whatever it takes to cool down and stay cool. Part of their job is to act responsibly and professionally, even in the face of false accusations.
- Clarify protocols for supervisors. Provide training and refreshers so supervisors know how to react when they receive a complaint from an employee. A supervisor typically is the first person to receive harassment complaints from employees and his/her response is critical in resolving and defending workplace discrimination claims.
- Apply policies and practices consistently. Selective enforcement of policies can support a claim of discrimination and retaliation, especially if enforcement is stepped up right after an employee files a complaint. If an employer departs from its usual policy or practice, the legitimate, nondiscriminatory reasons for the exception should be documented.
- Publish your complaint reporting procedures. Post them conspicuously and encourage employees to report any retaliation using the same complaint procedure.
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Sample Policy Against Discrimination, Harassment, and Retaliation
[Company Name] is committed to providing a work environment free of discrimination and harassment. It is [Company Name]’s policy that all employees have a right to work in an environment free of discrimination and harassment based on sex, age, race, national origin, religion, disability, genetic information, sexual orientation, marital status, or any other basis protected by federal, state, or local law. [Company Name] prohibits harassment of its employees in any form—by supervisors, co-workers, customers, or suppliers.
If you feel you have been discriminated against or harassed in any way, it is generally best to tell that person that you find such behavior offensive, that such behavior is against company policy, and that you want him or her to immediately stop. However, if you are uncomfortable taking this action, or if the conduct does not stop after you have warned the offending person, you should immediately contact your supervisor. If you feel you cannot seek help from your supervisor, then you should contact his or her supervisor or the [Human Resources designee], or higher-level management for assistance.
Every complaint will be investigated as promptly, thoroughly, and impartially as possible. We will protect the confidentiality of complaints to the fullest extent possible. If the investigation determines that discrimination or harassment has occurred, [Company Name] will take immediate and appropriate action.
[Company Name] will not retaliate against any employee for complaining about discrimination or harassment. If you feel you have been retaliated against, follow the complaint procedure above.
[Company Name] will ensure that managers and supervisors take positive steps to comply with this policy. They are required to be aware of potential discrimination situations, quickly resolve any discrimination issues that arise, and refrain from retaliation or harassment against any employee involved in the filing, investigation, or resolution of a discrimination claim.
Managers, supervisors, and all other employees are required to cooperate fully with the investigation and resolution of all discrimination and harassment complaints.
Eliminating retaliation—never easy, but certainly not your only challenge. In HR, if it’s not one thing, it’s another. Like FMLA intermittent leave, overtime hassles, ADA accommodation, and then on top of that whatever the agencies and courts throw in your way.
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You need a go-to resource, and our editors recommend the “everything-HR-in-one website,” HR.BLR.com. As an example of what you will find, here are some policy recommendations concerning e-mail, excerpted from a sample policy on the website:
Privacy. The director of information services can override any individual password and thus has access to all e-mail messages in order to ensure compliance with company policy. This means that employees do not have an expectation of privacy in their company e-mail or any other information stored or accessed on company computers.
E-mail review. All e-mail is subject to review by management. Your use of the e-mail system grants consent to the review of any of the messages to or from you in the system in printed form or in any other medium.
Solicitation. In line with our general non-solicitation policy, e-mail must not be used to solicit for outside business ventures, personal parties, social meetings, charities, membership in any organization, political causes, religious causes, or other matters not connected to the company’s business.
We should point out that this is just one of hundreds of sample policies on the site. (You’ll also find analysis of laws and issues, job descriptions, and complete training materials for hundreds of HR topics.)
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