It is very important that you treat your employees with respect when they come forward with complaints about discrimination or harassment to you, to a government agency, or to someone within your business. In the event you take any action that may cause the employee to feel that you are punishing or retaliating, you may end up in court.
Since retaliation claims have become more frequent, it is important for employers, managers, supervisors, and human resources representatives to familiarize themselves with the law of retaliation. These claims have also become more expensive.
What is Retaliation At Work?
When you or someone affiliated with you retaliate against an employee after he or she complains about harassment or discrimination, it is considered retaliation. The act of retaliation is defined as any act that would deter a reasonable employee in the same situation from complaining.
A government agency looking into a discrimination claim may not penalize an employee for providing a statement to the agency. Likewise, employees who take part in an investigation of those problems are also protected.
The employee may win a retaliation claim even if the original complaint of discrimination or harassment proves to be unfounded. In addition, employers cannot penalize employees who participate in internal investigations of harassment.
Demotions, discipline, firings, salary reductions, negative appraisals, and changes in work assignments or shifts are all examples of adverse action. A complaint by an employee can also prompt retaliatory behavior or attitudes on the part of you or someone working for you.
Retaliation can occur when an employee complains about another employee. According to the Supreme Court, the firing of a man shortly after his fiance (who worked for the same employer) filed a discrimination complaint could constitute retaliation.
The Intent of Retaliation Needs Not to be Malicious
In addition to actions taken with the intent to harass or punish the employee for complaining, retaliation may also refer to actions taken with good intentions if they negatively impact the employee.
Here are some examples:
- An employee complains that her supervisor harasses her sexually. To avoid having to deal with the supervisor anymore, you change the employee from the day to the night shift. Despite the fact that you didn’t intend to hurt the employee, this may have been retaliatory if she preferred the day shift.
- You receive a complaint from an African-American employee that his coworkers are racially hostile toward him and make racial jokes. You transfer the employee to a different store to resolve the issue. Taking this action may constitute retaliation if the new store is farther away from the employee’s home or the job is less desirable in some other manner.
In both of the above cases, the employer focused on the complainant rather than the wrongdoer. A complainant who discovers something illegal at work wants the employer to fix the problem, not remove him or her from the situation. By altering the employee’s working conditions, the employer committed acts that could be perceived as retaliatory.
How to Prevent Retaliation?
When a claim of discrimination or harassment is made at work, you must take these precautions:
- Ensure that retaliation is not tolerated. A clear policy against retaliation should exist even before an employee complains. You should specify what retaliation is in your policy, as well as make it perfectly clear that any managers or employees who retaliate will not be tolerated. Additionally, employees should know what to do if they feel that they are being retaliated against.
- Talk to the employee who has complained. Let him or her know that you will take his or her complaint seriously. Inform your employee that you want to hear about any hostile or negative incidents that the employee may have experienced. Make sure the employee understands your policy on retaliation. Describe what it means. The employee needs to know straight out that retaliation will not be tolerated in the workplace.
- Complaints should be kept confidential. There is a lower chance of retaliation against the complainer if fewer people are aware of the complaint. Naturally, you will have to inform a few people about the investigation when you examine the employee’s complaint. However, make sure that nothing more than what is absolutely necessary is disclosed. Explain to them the meaning of retaliation and make it clear that you won’t accept it.
- Keep a record of everything you do to prevent retaliation. Describe the retaliatory action in a letter to the complaining employee.
How to Deal with Discipline Issues?
Retaliatory actions are only taken after the employee complained. If an employee complains about discrimination or harassment, it is your right to retaliate against them for other reasons.
Here are some examples:
- An employee with poor performance can be given a negative evaluation.
- Employees who are always late to work can be disciplined for tardiness.
- It is possible to fire an employee for bringing a firearm to work.
Employers face the challenge of employees claiming that adverse actions are retaliation, even if they don’t relate to the employee’s complaint.
If you have to discipline an employee who has complained, then demonstrate that you have valid reasons for the discipline that are not related to the complaint. The reasons for disciplinary action should be documented, if possible, with prior warnings to the employee.
Call an Employment Lawyer at Siman Law Firm today.