What Employers Must Know to Prevent Retaliation Claims

By: Arlette Jeffries
November 21st, 2011

Don’t discriminate: It’s a message employers have heard for years and the vast majority know to adhere to applicable laws and industry best practices.

Another rule employers must adopt to further protect their companies is “don’t retaliate.”

Retaliation claims are now the most common employee grievance filed with the U.S. Equal Employment Opportunity Commission. The laws prevent discrimination based on the following: age, disability, equal pay/compensation, genetic information, national origin, pregnancy, gender and sexual harassment.

The federal statute also states that employers cannot fire, demote, harass or otherwise retaliate against an individual for filing any charges of discrimination or participating in a discrimination case.

“Any allegation of harassment needs to be reported immediately and taken seriously. There may be nothing to the discrimination claim, but if the employee is treated unfairly after complaining, there becomes a legitimate complaint,” says Paul Jumonville, manager of equal employment opportunity compliance at Insperity.

Properly educating and training supervisors on how to correctly handle employee complaints is an employer’s best protection against retaliation claims. All managers should undergo specific training about the process of addressing employee claims. A supervisor who responds “Are you serious?” or “You’re crazy,” after an employee alleges discrimination has opened the door for a retaliation claim.

It should be emphasized to all managers that every complaint, no matter how incredulous it may sound, should be taken seriously. Supervisors should be extremely familiar with company discrimination complaint procedures. Think of it like disaster readiness training — you hope to never use the knowledge but if it happens, you’ll be able to respond correctly.

It’s also extremely important to be very conscientious as to how the complainant is treated during the investigation process.

One problem for employers is that “retaliation” is not well-defined in the law and can be very nebulous and thus potentially dangerous, says Rick Gibbs Insperity senior HR specialist.

It may be human nature to ostracize an employee who has accused a manager of discrimination – a knee-jerk reaction to someone who you may believe is hyper-sensitive or even outright lying. But telling an employee to stay home while an investigation is conducted or physically altering their work environment can be construed as retaliation.

Conversely, if an employee is alleging sexual harassment by a supervisor, it’s likely that the best course of action is to transfer the employee to a different work group, under a different manager, while a thorough investigation is conducted.

By taking all discrimination claims seriously and adhering to pre-set policies and procedures employers can best protect themselves against claims of retaliation. Even the most frivolous of claims must be thoroughly investigated to ensure the employee does not add retaliation to their list of complaints.

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