Complain about me to EEOC? I don’t think so. No raise for her. Sound like any of your managers? Retaliation is the dumbest thing managers and supervisors do.
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If you haven’t trained your managers to avoid retaliation, it’s likely that one of them is thinking about retaliating against an employee right now.
At least, that’s the conclusion that can be drawn from the growing number of retaliation lawsuits filed these days. It’s easy to understand why plaintiff attorneys love them. The charge is easy to bring and relatively easy to get in front of a jury. And then it’s lose/lose for employers: Pay the high costs of defending the suit or the high costs of settling it.
What can you do about it? Train people to avoid retaliation, and build checks into your HR policies and systems that require managers to bring problems to you.
Training Point #1—Retaliation Is a Natural Thing
Why do managers feel the need to retaliate? The motivation is easy to understand. No manager is going to be happy when an employee files an Equal Employment Opportunity Commission (EEOC) complaint or suddenly announces that he or she will be out on FMLA for 2 months, disrupting the manager’s plans. It’s natural to think about taking it out on the employee, but you have to train your managers to “get over it.”
Training Point #2—Laws with Retaliation Provisions
The list of federal laws with anti-retaliation provisions includes all the usual suspects:
- Title VII of the Civil Rights Act
- Equal Pay Act
- FMLA
- ADEA
- ADA
- OSH Act
- FLSA
- USERRA
- Sarbanes-Oxley (SOX)
State laws offer even more protections. But don’t bother to memorize the list—just remember that basically, the ban on retaliation covers every employment action you take!
Training Point #3—Bringing a Retaliation Suit
To bring suit, three elements must be present: protected behavior, adverse action, and a connection between the two.
Protected Behavior
Generally, retaliation provisions exist to make sure that employees feel free to access the privileges that the law promises without fear of reprisal. So the following actions are generally considered protected:
- Acting under the law.For example, requesting an accommodation under the ADA or filing a claim with a government agency.
- Refusing an action they think the law prohibits or protects.For example, refusing work believed unsafe or illegal.
- Participating in a legal process. For example, testifying at a hearing.
Adverse Action
The employee bringing the suit must have suffered an adverse action. Termination, failure to promote, and transfer to a worse job would qualify. Other actions seen as adverse include:
- Lateral transfers and reassignments
- Ostracism by supervisor or co-workers
- Harassment or hostility from supervisor or co-workers
- Threatening employees who suggest they may file a suit
Tomorrow we’ll look at the bottom line when it comes to retaliation firing.