Compared to claims for sexual harassment or other discrimination claims, the legal threshold to prove a retaliatory act is very low. More importantly, it is difficult to defend a retaliation case in front of a jury. It is more likely that jurors will find that a company took some sort of retaliatory action against an employee for reporting sexual harassment or complaining about perceived discrimination. Jurors may be more hesitant to hold an employer liable in a discrimination case since they’d be required to find a company or manager was “sexist” or “racist.”
Understanding how retaliation is defined and knowing what constitutes retaliation can help employers develop a strategy to minimize the risk of being subject to such claims.
Retaliation is generally defined as when an employee engages in protected activity and, as a result, suffers a material job detriment. Protected activity includes situations when an employee reports a discrimination issue to management or other authority (i.e. making an internal complaint, filing a charge with a government agency, or acting as a witness in an investigation). It should be noted that protected activities are not just limited to sexual harassment. There are many laws and acts, such as the Age Discrimination in Employment Act (ADEA), Americans with Disabilities Act (ADA), Civil Rights Act of 1964 (Title VII), etc., which specifically bar retaliation.
The EEOC states that it is unlawful to retaliate against employees or job applicants who, among other things:
File charges or are witnesses in an EEOC investigation, complaint, or lawsuit;
Refuse to comply with directions from a supervisor which would otherwise result in discrimination;
Request a religious or disability accommodation;
Answer questions during an employer investigation regarding alleged harassment;
Ask co-workers or managers about wage or salary information to uncover potentially discriminatory wages; and
Intervene to protect others from sexual advances or resisting sexual advances
Employers must note that this is not an exhaustive list of retaliatory acts. In 2016, the EEOC broadened the definition of retaliation to include behaviors considered to be “pre-retaliatory” or acts that try to discourage or stop employees from raising issues or filing complaints in the first place.
The following are some examples of retaliatory behaviors:
Firing the employee;
Reducing the number of hours the employee is scheduled to work or changing the employee’s work schedule to times that conflict with personal obligations;
Refusing to promote the employee or give the employee a raise;
Demoting or transferring the employee to a less desirable position;
Creating a hostile or uncomfortable work environment;
Giving the employee a bad performance review when not merited or evaluating the employee more severely than others; and
Excluding the employee from meetings or other company-related activities.
It is relatively easy for an employee to assert a retaliation claim. The employee who has been wronged must only show a connection between their engagement of a legally protected activity and a negative or adverse action they experienced as a result of their legally protected activity. They need not show that any discrimination occurred.
So how can employers minimize their exposure to retaliation claims?
Include an anti-retaliation policy in your employee handbook that specifically prohibits any employee from taking retaliatory actions against another employee. The policy should also include a specific process employees may utilize to report acts of retaliation and should encourage employees to come forward with concerns.
Providing training to all supervisors, managers, and human resources representatives to ensure they understand what actions constitute retaliation in the workplace. Ensure that they are prepared to respond in an appropriate manner if an employee engages in protected activity (i.e., an employee files a complaint or participates in an investigation). Be sure to document all training conducted with management and employees to serve as proof that you have taken practical steps to prevent retaliation in the workplace. Further, it is important to make sure that all employment decisions are made based upon legitimate, non-discriminatory reasons.
Another effective way to minimize exposure to retaliation claims is to create a hotline that permits employees to submit complaints anonymously. An anonymous hotline will allow employees to bring issues to their employer’s attention and employers can quickly take steps to solve those problems with minimal disruption and full anonymity. This solution can also eliminate a manager or supervisor’s chance to retaliate against an employee since they won’t know who submitted the complaint.