Preventing Retaliation Claims: Best Practices for Employers

Workplace retaliation is not just a compliance issue; it’s the single most frequently filed charge with the U.S. Equal Employment Opportunity Commission (EEOC). In fiscal year 2023, retaliation charges accounted for a staggering 54.8% of all charges filed. For employers, this means the risk of a retaliation claim is often greater than the risk of the underlying discrimination or harassment claim.

These claims often arise when an employee alleges that an employer took adverse action against them because they engaged in a protected activity, such as reporting discrimination, participating in an investigation, or taking legally protected leave.

Understanding and preventing retaliation is vital for maintaining a legally compliant, fair, and positive work environment. To prevent retaliation claims and mitigate risk, speak to an employment lawyer to clearly outline your prevention plan.

The Three Pillars of a Retaliation Claim

For an employee to successfully claim retaliation, they must typically prove three things:

1. Protected Activity: They engaged in an activity protected by law.
2. Adverse Employment Action: They suffered a negative action from their employer.
3. Causal Connection: The employer took the adverse action because the employee engaged in the protected activity.
   

Understanding Retaliation

Retaliation occurs when an employer takes adverse action against an employee because the employee engaged in a protected activity. This adverse action can take many forms and is not limited to termination.

Definition of Retaliation

Retaliation law refers to retaliation, any adverse action taken by an employer against an employee because the employee engaged in a legally protected activity. Protected activities include reporting discrimination or harassment, participating in an investigation, filing a complaint with a government agency, or exercising a legal right, such as taking leave under the Family and Medical Leave Act (FMLA).

What Is a Protected Activity?

Several activities are considered protected under federal and state laws. These activities require employees to report unlawful conduct without fear of reprisal. Key examples include:

• Reporting Discrimination or Harassment: Reporting incidents of discrimination or harassment based on race, color, religion, sex, national origin, age, disability, or genetic information.
• Participating in Investigations: Cooperating in internal investigations or investigations conducted by government agencies like the Equal Employment Opportunity Commission (EEOC).
• Filing a Complaint: Filing a formal complaint with a government agency, such as the EEOC or a state fair employment practices agency.
• Opposing Unlawful Practices: Opposing practices that an employee reasonably believes are unlawful, even if those practices do not ultimately violate the law.
• Requesting Accommodations: Requesting reasonable accommodations for a disability under the Americans with Disabilities Act (ADA).
• Taking Protected Leave: Taking leave under the FMLA, state family leave laws, or other legally protected leave.

What Counts as Adverse Actions

Adverse actions are conduct taken by an employer that would dissuade a reasonable employee from engaging in protected activity or making a charge of discrimination. These actions can be direct or indirect and do not have to involve termination. Examples of adverse actions include:

• Termination: Firing or laying off an employee.
• Demotion: Reducing an employee’s rank, responsibilities, or pay.
• Suspension: Temporarily removing an employee from their job without pay.
• Unwarranted Negative Performance Evaluation: Providing an unjustified negative performance evaluation.
• Harassment: Creating a hostile work environment through verbal abuse, intimidation, or other forms of harassment.
• Transfer to Less Desirable Position: Transferring an employee to a less desirable position or location.
• Denial of Promotion or Benefits: Denying an employee a promotion, raise, or other benefits.
• Exclusion or Isolation: Excluding or isolating an employee from meetings or work activities.

Proving the Causal Connection

This is the link between the protected activity and the adverse action. An employee can establish this link through direct evidence (e.g., an email saying “let’s fire him for complaining”) or, more commonly, circumstantial evidence. A key factor is timing. If an employee is fired a week after filing a harassment complaint, that close proximity can suggest a causal link.

Implementing and Enforcing a Robust Anti-Retaliation Policy

A clear and comprehensive anti-retaliation policy must define retaliation, provide examples of protected activities and adverse actions, and explain how to report concerns.

• Policy Content:
  • Define retaliation clearly and provide examples of protected activities and adverse actions.
  • State that retaliation is strictly prohibited and will not be tolerated.
  • Outline the process for reporting concerns about retaliation, including multiple reporting channels (e.g., HR, supervisor, hotline).
  • Ensure that employees understand they are protected from retaliation for reporting concerns.
  • Specify the disciplinary actions for engaging in retaliatory conduct.
• Policy Dissemination:
  • Provide the policy to all employees upon hire and make it readily available (e.g., in an employee handbook or intranet).
  • Conduct regular sessions to review the policy and address questions.
  • Post the policy in common areas.

Training and Education

Training is necessary for ensuring that managers and employees understand anti-retaliation laws and the company’s policy.

• Manager Training:
  • Train managers on what constitutes retaliation and how to avoid it.
  • Provide training on how to respond to employee complaints and concerns without retaliating.
  • Educate managers on their responsibility to report any allegations of retaliation.
  • Train managers on how to document performance issues and disciplinary actions properly.
• Employee Training:
  • Educate employees about their rights and protections against retaliation.
  • Explain the process for reporting concerns about retaliation.
  • Ensure that employees understand they will not be retaliated against for reporting concerns.

Maintaining Consistent and Objective Documentation

Detailed and accurate documentation is critical for defending against retaliation claims.

Performance Documentation:

• Maintain accurate and objective records of employee performance records evaluations, feedback, and improvement plans.
• Document both positive and negative performance issues.
• Base performance evaluations on objective criteria and conduct them regularly.

Disciplinary Documentation:

• Document all disciplinary actions, including verbal warnings, written warnings, suspensions, and terminations.
• Include the date, time, location, and details of the incident.
• Identify witnesses and summarize their statements.
• Ensure that disciplinary actions are consistent and follow established procedures.

Conduct Prompt, Thorough, and Neutral Investigations

When an employee complains, a swift and fair investigation is your best tool.

• Appoint a Neutral Investigator: This person must be unbiased and well-trained in investigative techniques.
• Follow a Clear Process: Interview all relevant parties, review documents, and maintain confidentiality to the extent possible.
• Document all employee complaints, regardless of whether they are formal or informal.
• Conduct investigations promptly and thoroughly.
• Document Findings: Create a thorough, objective report of the investigation’s findings and the actions taken.

Record Retention:

• Establish a record retention policy to keep documents for the required period securely stored and easily accessible, including interviews, evidence collected, and findings.

Establishing Effective Complaint Procedures

Clear and accessible complaint procedures encourage employees to report concerns without fear of retaliation.

• Multiple Reporting Channels:
  • Provide multiple channels for reporting concerns, such as HR, supervisors, a designated officer, or an anonymous reporting hotline.
  • Ensure that employees know how to use each reporting channel.
• Confidentiality:
  • Protect the confidentiality of employees who report concerns to the extent possible.
  • Ensure that employees feel safe reporting concerns without fear of reprisal.
• Prompt Investigation:
  • Investigate all complaints promptly and thoroughly.
  • Designate a neutral and qualified investigator.
  • Keep the employee who reported the concern informed of the investigation’s progress.
• No Retaliation Statement:
  • Include a statement in the complaint procedure that retaliation is strictly prohibited.
  • Ensure that employees understand that they will not be retaliated against for reporting concerns.

Conducting Prompt and Thorough Investigations

Thorough investigations are critical for addressing retaliation claims effectively.

• Neutral Investigator:
  • Designate a neutral and qualified investigator who will conduct prompt and thorough investigations.
• Neutral Investigator:
  • Designate a neutral and qualified investigator who is unbiased and trained in conducting investigations.
  • Ensure the investigator has the authority and resources to conduct a thorough review.
• Interviewing Witnesses:
  • Interview all relevant witnesses, including the complainant, the alleged retaliator, and any other individuals who may have had.
  • Document witness statements wholly and accurately.
• Reviewing Documents:
  • Review all relevant documents, such as emails, performance evaluations, disciplinary records, and any other evidence related to the claim.
  • Ensure all relevant documentation is collected and preserved.
• Maintaining Confidentiality:
  • Maintain confidentiality throughout the investigation to the extent possible.
  • Avoid discussing the investigation with anyone who does not need to know.
• Documentation of Findings:
  • Document all findings of the investigation, including conclusions and recommendations.
  • Ensure the investigation report is thorough, objective, and unbiased.

Preventing retaliation claims is crucial for a respectful and legally compliant work environment. Hiring an employment attorney ensures you have a plan to avoid employee retaliation or defend against a claim.

Questions About Retaliation Claims

Can we fire an employee for poor performance if they recently filed a harassment complaint?

Yes, but you must proceed with extreme caution. You can take action for legitimate, non-retaliatory reasons.

However, the timing is a major red flag. To defend this action, you must have clear, pre-existing documentation demonstrating the performance issues before the employee complained. The reason for the termination must parallel how you have treated other employees with similar performance problems.

Consult legal counsel before taking action in this scenario.

Q: What if an employee’s original discrimination complaint was completely baseless? Can they still have a valid retaliation claim?

Yes. This is a critical point many employers misunderstand. As long as the employee had a good faith, reasonable belief that the conduct they complained about was unlawful, you cannot retaliate, even if the investigation concludes no discrimination occurred.

Punishing an employee for making a complaint—even a mistaken one—is the definition of retaliation.

How does at-will employment affect retaliation claims?

While most states have at-will employment (meaning an employer can terminate an employee for any reason or no reason at all), this doctrine does not permit terminating an employee for an illegal reason.

Retaliating against an employee for engaging in a protected activity violates federal laws like Title VII of the Civil Rights Act, the ADA, and the ADEA, as well as many state laws.

The at-will status is not a defense to a retaliation claim.

Speak With an Employment Lawyer About Defending a Claim

If you’re an employer whose employee has filed a retaliation claim, get legal representation. Speak to a trusted employment attorney right away to investigate the claim, preserve evidence, and formulate a legal strategy. Contact us today!