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 practice
- Make a charge of discrimination or harassment
- Testify, assist or participate in an investigation, proceeding or hearing
“Sticks 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 this saying to teach us that no matter what people said, we didn’t need to retaliate in anger.
However, as a child, we had another sentence we’d say out of our parents’ hearing: “Call me this and call me that, I’ll hit you with a baseball bat!”
And therein is the underlying issue for workplace retaliation.
What is retaliation?
Basically, it is any adverse action that an employer takes against an employee in response to a complaint that person 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
- Negative performance evaluations
- Hostile attitudes
- Changes in job assignments or shifts
- Time off without pay
Many employers don’t understand what constitutes retaliation.
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!
There are other forms of retaliation as well.
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 activity can also qualify as retaliation.
What you can do to limit your risk of getting slapped with a retaliation claim:
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!
Maintain as much confidentiality as possible.
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 employee to the list of those who can bring action for retaliation.
Don’t forget to work with the target of the complaint too!
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.
Does this mean that an employee who makes a complaint 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.
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 their action, would I still be doing this?”
Be sure the answer is yes, and that you can convince others of that as well.
Remember Thomas Moore’s words: Those who plot the destruction of others often perish in the attempt.