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HR: Restraint can help avoid retaliation claims

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Sunday, April 01, 2007

The numbers are alarming. Despite all the knowledge and understanding of the inherent risks that employers have, federal employment discrimination claims are climbing. Employment claims are rising nine times faster than any other federal civil litigation, and the one rising faster than all the rest is retaliation claims. A retaliation claim alleges that an employee suffered an adverse employment action because the employee engaged in protected activity, i.e. the filing of a discrimination complaint under federal or state law.  A review of the Equal Employment Opportunity Commission (EEOC) numbers shows that retaliation claims have doubled over the past 10 years, and now account for 25% of all claims filed with EEOC.  

This is serious business for employers because, sadly, employers can actually win the original discrimination allegation but still lose a retaliation claim.

As an example, assume that a female employee believes she has been discriminated against because she didn’t get the same percent of pay increase at annual review time as men in the department. The female employee may have had performance issues during the year or already be paid higher in the pay range than the men. But she doesn‘t consider these sufficient reasons for receiving a lesser amount. The employee files a complaint with EEOC or the state agency alleging that she has been discriminated against on the basis of sex.

In addition to describing the situation relative to pay, she tells the agency that ever since she raised this issue of her pay with the organization she has been treated badly. She declares that whenever she walks into her boss’s office, he says, “What have you come to complain about today?”

She relates that when she asked for vacation time to visit her family, she was denied the time off even though she had accrued vacation time on the books. And she also says that her supervisor has been checking on her work and indicating his dissatisfaction with almost everything she does. As a result of these comments, a retaliation charge is added to her complaint.

In the scenario above, after investigation, no grounds are found to support the discrimination charge. The reduced pay increase is found to be unrelated to the employee’s gender. Evidence is uncovered, however, of retaliation by the supervisor. The penalties for this alone can be crushing. According to attorneys, the largest punitive damages awarded in discrimination actions are usually for retaliation.

So what should employers do to protect themselves? According to an article written by Lloyd Zimmerman for LexisNexis, “If you are mad about a discrimination charge, vent only to your lawyer. Outrageous statements that you make to your lawyer when you are mad are completely confidential.”

In other words, be careful what you say and to whom. Colin Walker, an attorney with  Fairfield and Woods, suggests these steps:

  • HAVE AN ANTI-RETALIATION POLICY clearly stating that employees will not be retaliated against for complaining about discrimination, harassment or other unlawful activity.

  • PROVIDE CLEAR MECHANISMS for complaints and investigations.

  • INVESTIGATE CLAIMS OF DISCRIMINATION and harassment promptly and thoroughly; follow up with the complaining employee and make sure the issues has been resolved.

  • AS PART OF ANY INVESTIGATION, be sure to counsel any accused parties that retaliation of any kind is prohibited, and advise the complaining employee to promptly report any further complaints of alleged retaliation or other wrongful conduct.

  • CAREFULLY DOCUMENT the reasons for em-ployment action taken with respect to all employees, but particularly those who have complained about discrimination and/or harassment.

Let me add a couple more to that list:

  • DON’T ASSUME that supervisors and managers know what actions are covered by the word retaliation. Be specific about what statements, actions, and decisions must be avoided.

  • CHECK IN FREQUENTLY with the employee who complained; document it when they say things are going well.

  • HAVE A SECOND-LEVEL REVIEW of any employment decision made regarding the complaining employee. This should protect the organization from the decisions of the supervisor who is likely very upset with the employee.

Retaliation complaints because of small slights or less social interaction will likely not cause an employer to lose a case. But it is a short distance between those actions and decisions not to promote, to give a smaller raise, or to bad-mouth an employee requesting a transfer.
These may be retaliation and they can cost the employer time, reputation, employee morale, lots of money, and copious amounts of grief.

— Judy Clark, SPHR
CEO, HR Answers
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