Paul Horton: Workplace Retaliation

Workplace retaliation lawsuits have become increasingly more common and more expensive for employers. When employees file a complaint about discrimination or harassment in the workplace, it’s imperative that you, as an employer, take it very seriously and handle the complaint with special care. I’m telling you, not just as a Business Lawyer, but someone who’s seen these things happen over and over that, if the course of action you take is viewed as punishing the person for filing the complaint in any way, you may wind up facing a very expensive lawsuit.

What Qualifies as Retaliation

Retaliation is any adverse action that a company takes against an employee because he or she filed a complaint about harassment or discrimination. Adverse action can include actions such as firing the employee, giving them negative evaluations, disciplining or demoting them, reassigning them or reducing their pay.

Protection against retaliation doesn’t just apply to the person who filed the complaint, it also applies to anyone who participates in the investigation that arose from the complaint. This means that employees who are interviewed regarding a complaint cannot be retaliated against because they participated in the investigation.

The Truth of the Complaint Doesn’t Matter

What can be galling for many employers is that even if the original complaint of harassment or discrimination turns out to be baseless or even fabricated, the employer is still on the hook if they take any action that can be deemed retaliatory. Never take action that punishes someone for bringing a complaint because you think the claim is bogus or because you think the employee is simply lying — it doesn’t matter.

Unintentional Retaliation

Many employers fall into the trap of unintentionally retaliating against an employee. For example, suppose an employee complains to you that a supervisor constantly makes derogatory and sexist comments. Trying to be helpful, you think that it would be a good idea to move the employee to a different office while the claim is investigated. Even though you may have had good intentions – separating the employee from the alleged harasser, – if the reassignment is seen as retaliatory, then you would be liable for workplace retaliation.

The problem in the above example is that the complaining employee, not the alleged harasser, had his or her employment affected as a result of filing a complaint. If you want to take action to remedy the situation, then the focus needs to be on the wrongdoer, not the employee complaining. The problem isn’t fixed by removing the complainer; instead, the problem should be fixed by removing the cause.

How to Handle an Employee who has Complained

Although employers are allowed to discipline their employees, regardless of whether they’ve filed a complaint or not, it pays to be especially careful in how you discipline an employee who has filed a complaint. For example, suppose an employee filed a complaint about sexual harassment. When the employee receives a negative review two months later, even if the review had nothing to do with the sexual harassment complaint, the employee will often construe the review as retaliation.

Accordingly, if you are going to discipline or otherwise negatively affect the employee after he or she has filed a complaint, take special care to document your basis for disciplining the employee. Otherwise, in the absence of proof to the contrary, a court might be suspicious of the timing between the complaint and the subsequent disciplining of the employee.

Preventing Retaliation in Your Business

Preventing claims of retaliation in the workplace is surprisingly easy and doesn’t take much effort or time:

Create a Policy: Make sure you have a policy against retaliation already in place. The policy should specify what retaliation is, state that retaliation won’t be tolerated and set forth a process for reporting and investigating complaints.
Take Complaints Seriously: Take all complaints seriously and perform a thorough investigation. If the complaint has any basis, remedy the situation immediately. Remember to focus on the wrongdoer, not the employee who complained.
Keep Complaints Confidential: Make it clear to your employees that any complaints they file will be kept confidential and information will only be shared with members of the organization to assist in investigating the matter. Also, let employees know that filing a complaint will not in any way affect their career opportunities.
Keep Records: Have a process in place that records and documents everything, from the initial complaint, through the investigation and all the way to the conclusion. It is imperative that you document the process for any future legal proceedings.

Free Consultation with a Business Lawyer

If you are here, you probably have a business or employment law issue you need help with, call Ascent Law for your free workplace retaliation consultation (801) 676-5506. We want to help you.