Avoiding retaliation claims: 13 steps managers can take

The Seven Fundamentals of ManagementAvoiding retaliation claims at work can be a lot like waiting for the other shoe to drop.

For instance, a disgruntled employee files some grievance, alleging some form of discrimination in the workplace or another imagined injustice. You may easily win that case, but then perhaps the employee who filed the charge had to be disciplined over something else.

Or maybe the employee was merely ostracized by co-workers who weren’t in agreement at all with what the employee’s complaint and had rallied around the company’s interests.

Next thing: This employee files a retaliation suit – and wins! To make matters worse, the retaliation case winds up costing you far more than the original case.

So even though you won the original complaint, you can lose big.

Retaliation is now the most common charge filed with the Equal Employment Opportunity Commission (EEOC), overtaking all other types of complaints filed with the commission, and accounting for 36.3% of all EEOC cases.

It’s easy to see why this type of charge is flourishing: Retaliation has a lower threshold of proof than the typical bias case. Therefore, retaliation cases have a better chance of success. And they net bigger monetary recoveries, too.

Median recovery in a retaliation case is $225,000, compared to only $200,000 for simple discrimination cases. Some retaliation cases, such as classic whistle-blower cases, have no caps and multimillion dollar verdicts are becoming fairly common.

Plaintiffs’ attorneys are also emboldened by recent U.S. Supreme Court decisions regarding retaliation cases. Despite the fact that the High Court is generally considered conservative and pro-business, the present court has “never seen a retaliation case it didn’t like,” according to many leading labor and employment law attorneys.

Any employer action that might dissuade a reasonable person from exercising his or her protected rights in the workplace can be considered retaliation.

It is against the law to retaliate against an employee who:

  1. Requests an accommodation under the Americans with Disabilities Act.
  2. Files a workers’ compensation claim.
  3. Participates in union organizing.
  4. Gets pregnant or plans to get pregnant.
  5. Files a safety complaint.
  6. Blows the whistle on a practice the person reasonably believes to be illegal.
  7. Files a harassment complaint.
  8. Files a discrimination claim.

Avoiding retaliation claims

With all that in mind, here is a 13-point prevention plan.

  1. Have a clear and unambiguous policy, in writing, that forbids any kind of retaliation in your organization, and describe the parameters of what may constitute retaliation as best you can.
  2. Be sure to periodically conduct refresher training for managers and supervisors.
  3. Train managers on what actions are protected from retaliation and what may be held to be an adverse employment action.
  4. Make all employees who take the training sign that they received it.
  5. Make it clear where employees who feel they have a complaint may go to be heard.
  6. Set out a protocol for how to conduct investigations into charges of retaliation.
  7. Make it clear that failure to cooperate with such investigations can lead to discipline for anyone.
  8. Conduct investigations promptly.
  9. Keep in mind that any other employees who assist in an investigation will likely also be able to enjoy whistle-blower protection, even if he or she was not an original complainant.
  10. Take effective remedial measures.
  11. Communicate the results of the investigation to the aggrieved person.
  12. If there is a proposal from any level in the organization to discipline an employee who previously filed a complaint, make sure a member of upper management approves it and signs off on it before the discipline proceeds.
  13. Make sure that nothing you do dissuades people from coming forward with complaints that they believe may be legitimate. If people are discouraged from coming forward, they may be inclined to run to the authorities, which is absolutely the last thing you want.

This is the sixth in a series of articles on the 7 fundamentals of management. To see the other articles, please go to The 7 fundamentals of management page.

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