Avoiding Retaliation

SB: This is Steve Bruce for the HR Daily Advisor.

Today, we have a question from Denise in Chicago. “I understand that retaliation is now the leading basis for charges against employers,” Denise says. “What should I be doing to avoid such charges?”

Yes, Denise, retaliation is the leading basis for charges, but what’s more important is that it is also the dumbest of all charges. I say dumb, because most retaliation charges could be easily avoided if managers and supervisors would just think before they act.

Basically, retaliation is any action that would dissuade a reasonable worker from engaging in protected activity.

Federal laws like Title VII of the Civil Rights Act, the Fair Labor Standards Act, and the Family and Medical Leave Act prohibit retaliation by employers when an employee engages in “protected activity,” like complaining of discrimination or harassment, being a witness in an investigation, or filing a workplace discrimination charge with the EEOC.

Many other statutes, both state and federal also contain retaliatory prohibitions, for example, whistleblower laws, state workers’ compensation laws, and laws governing jury service.

It’s also important to know that under a recent decision by the U.S. Supreme Court, an employer can’t retaliate against an employee by taking adverse action against someone else that the employee has a close relationship with. For example, you can’t retaliate against an employee by firing his or her spouse.

Why are retaliation suits so prevalent today?

Aggressive attorneys have realized that retaliation suits are “low-hanging fruit.” They are relatively easy to tack on to another suit and they’re relatively easy to win.

That’s because the legal standards for proving retaliation are different from the standards for proving discrimination in employment. Generally, an individual can establish a retaliation claim by showing that:

• he or she engaged in a protected activity;
• he or she suffered an adverse employment action; and
• there was a causal connection between the two

One might think that showing the “causal connection” would be difficult, but it’s often shown simply by timing—for example, an employee was terminated two weeks after making a complaint to the EEOC. The employee alleges that the close timing “proves” that the negative action was retaliation for the protected act.

While timing isn’t “proof,” it can be used as evidence and it can be hard to refute. (Conversely, a long time span between the protected act and alleged retaliation typically weakens the employee’s argument that the adverse action was taken in response to protected activity.

What’s particularly frustrating for HR managers is that a retaliation claim can survive even when the underlying complaint of workplace discrimination is dismissed.

For example, here’s how it could go:

An employee sues the company, alleging race discrimination.
Two weeks later, the employee is fired for “poor performance.”
The employee adds retaliation to the lawsuit, claiming that the termination was retaliation for having filed the suit.
The judge rules against the employee on the race discrimination complaint and it is dismissed—but the retaliation claim is still there.
The opposing attorney grills the employer about the “poor” the performance and asks why the termination happened that particular day.
The “poor performance” reason for the termination falls apart because performance appraisals say performance was “Acceptable.”
Now it looks like the employer lied about the reason for termination.
That leaves one conclusion—retaliation.

What can you do?

Have a written policy.  As the backbone for your anti-retaliation program, initiate a policy prohibiting retaliation .
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.
Don’t fire employees when you’re fired up. Managers and supervisors need to understand that anger should not dictate employment decisions. 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 for supervisors so they know, for example, how to react when they receive a complaint from an employee.
Apply policies and practices consistently. Selective enforcement of policies can support a claim of retaliation, especially if enforcement is stepped up right after an employee files a complaint. When you have to depart from your usual policy or practice, document the legitimate, nondiscriminatory reasons for the exception.
Finally, publish your complaint reporting procedures. Post them conspicuously and encourage employees to report any retaliation using the same complaint procedure.

Denise, thanks for your question and best of luck with all your HR challenges. This is Steve Bruce for the HR Daily Advisor.