Workplace Retaliation

Workplace retaliationSticks and stones may break my bones, but words will never hurt me!

This childhood saying comes to mind as I prepare to write this article.  Our parents used it to teach us that no matter what people said, we didn’t need to retaliate in anger.

But, as children, we had another sentence we’d say out of our parents’ hearing:

Call me this and call me that, and I’ll hit you with a baseball bat!

This, in a nutshell, is the underlying essence of workplace retaliation.

What is workplace retaliation?

Workplace retaliation is any adverse action that an employer takes against an employee in response to a complaint that employee has made about discrimination or harassment. 

It can also apply to employees who exercise their rights under laws such as workers comp, employment laws, FMLA or other leave laws.

Recent court decisions have gone even further, extending the same protection to staff who participate in investigations of other employees’ complaints. The original complaint does not need to be well founded in order for the courts to determine that the employee was indeed retaliated against.

Retaliation includes adverse actions such as:

  • Wage reductions
  • Disciplinary measures
  • Demotions
  • Negative performance evaluations
  • Hostile attitudes
  • Changes in job assignments or shifts
  • Time off without pay
  • Terminations

Title VII of the Civil Rights Act protects employees from retaliation in a variety of situations.  It says an employer cannot discriminate against an employee or applicant because they:

  • Oppose a practice
  • Make a claim of unlawful employment practices
  • Make a charge of discrimination or harassment
  • Testify, assist or participate in an investigation, proceeding or hearing

Retaliation claims are on the rise.

Retaliation claims have risen significantly in the last few years.  Almost 100,000 discrimination claims were filed in 2010 with the Equal Employment Opportunity Commission, the highest in its 45 year history.

In 2010 more than 36% of claims filed with the EEOC were retaliation claims, surpassing race as the most frequently filed charge.

Unfortunately for employers, retaliation claims tend to be easier to win, and they also tend to result in bigger verdicts than other types of claims.  This is because it’s easy for juries to understand that retaliation is a part of human nature.  When an employee makes a potentially harmful claim of discrimination or harassment against their employer, it can be quite believable for a jury that a supervisor or someone else might want to strike back.

In 2010, the EEOC had a record high recovery of $319 million!

Real life examples of workplace retaliation, and what you can learn from them:

We need look no further than Shelton to find a perfect example of workplace retaliation — and its severe consequences.

Two female employees of Mason County Forest Products complained about treatment they received from their supervisor and the male employees on their crew (treatment that included, among many other things, locking the women in portable toilets and pushing the units back and forth so that their foul contents would splash upon the victims).  They alleged that upper management ignored the harassment, dismissing the issue as “Boys will be boys.”

Eventually, the two women were fired as a result of complaining about their treatment.

In the end, Mason County Forest Products was forced to pay $900,000 to the women to settle their claims of sexual harassment, sex discrimination and retaliation.  This company learned the hard way that retaliation in the workplace can come back to bite a business very, very hard.

Many times employers don’t understand what constitutes retaliation, and they find themselves accused of it based on an action that they took out of good intentions.

  • For example, we had a client whose employee felt his supervisor made inappropriate sexual comments to him.  During the investigation period, the company moved the complainant to another shift in order to prevent further harassment.

While the employer did this out of the best of intentions, this action constituted retaliation against the complainant, who did not want to make a shift change.  This actually made our client even more vulnerable, because it potentially handed that employee two causes of action against them instead of just one!

  • Recently, a different business warned us not to hire their former employee, because he had incurred a costly workers comp claim with them, which they felt was not legitimate.  Giving a bad reference to a former employee based on their engagement in protected activities can also qualify as retaliation. 

How to avoid accusations of workplace retaliation:

First off, your company should have a defined anti-discrimination and sexual harassment policy in place, which all of your management team understands.  It’s also important for your supervisors and managers to understand what constitutes retaliation under the law.

  • When an employee files a complaint, treat them with respect and dignity, and take their complaint very seriously.  They have a right to as much confidentiality as possible.
  • Let the employee know that you will not tolerate any retaliation against them while their complaint is being investigated and resolved.
  • Instruct them to inform you immediately if they feel they are being retaliated against.

Don’t fear that you are empowering them to make additional complaints by giving them knowledge of their rights.  Trust me, they’ll learn their rights on their own anyway!

If you let them know from the beginning that you are on their side, you will most likely develop an amicable relationship, which will enable you to resolve issues together before they escalate.

As always with issues relating to human resources and personnel, good documentation is essential: From the moment that you hear of a complaint, start documenting every detail.  Document the employee’s complaints, document all of your actions, and document every conversation you have with any other employees.  Document the heck out of every aspect of the situation!

You must investigate and resolve any complaints that are brought, but do this while maintaining as much confidentiality as you can:  The more people brought into the discussion, the greater the probability that someone will make a comment, or take an action, that could be construed as retaliation.  In addition, remember that when you bring another employee into the investigation by asking them questions, such as, “Have you ever heard Jill make inappropriate comments to Jack?” you have then added another person to the list of those who can bring action for retaliation.

Don’t forget to work with the employee against whom the complaint has been made:  Since this person may well be in management and have the ability to retaliate, immediately remind them of what constitutes retaliation.  Realize that they might be upset by the allegations against them, and work with them to mitigate and channel their anger, so they don’t act against the complaining employee.

The wrap-up:

Does this mean that an employee who has made a complaint now gets a free ride?  Of course not — but it does make the discipline process more complex.

If an employee has had a history of excellent performance reviews, makes a complaint of discrimination, and then their next review is poor, this will appear to be retaliation.  Therefore, you will need to follow a strict progressive discipline policy when dealing with an employee whose performance starts to slip, or who disobeys company policies or procedures.

The importance of the “but for” question:  Whenever you’re dealing with an employee who has engaged in a “protected activity” you should ask yourself the “but for” question, which is:

But for my employee’s action, would I still be doing this?

Be sure the answer is yes, and that you can convince others of that as well.  And remember Thomas Moore’s words:  Those who plot the destruction of others often perish in the attempt.

Originally published in the Kitsap Peninsula Business Journal.

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