• Plan and Respond to Protect Against Retaliation Claims
  • February 26, 2015
  • Law Firm: Obermayer Rebmann Maxwell Hippel LLP - Philadelphia Office
  • Retaliation claims are the most common employment-related suits filed with the U.S. Equal Employment Opportunity Commission. Since 1997, retaliation claims have been on a steady rise, and in 2013, such claims made up 41.1 percent of all charges filed with the EEOC, according to its own statistics. Because all of the laws enforced by the EEOC, which prohibit discrimination in employment, also prohibit retaliation in any aspect of employment, employers are highly susceptible to retaliation claims. Employers must take proactive steps to train managers, supervisors and human resources personnel to protect themselves against the ever-increasing liability of retaliation lawsuits.

    Employers must be conscious of the need to manage without retaliating. To avoid retaliating, employers must first understand what it means to retaliate. Retaliation in the workplace is a form of unlawful discrimination whereby an employer takes an adverse employment action, such as harassment, demotion, termination or discipline, against an employee who has engaged in statutorily protected activity. Not every action an employee takes constitutes protected activity; rather, protected activity includes filing a charge of discrimination, complaining to an employer of actual or perceived workplace discrimination, or participating in an employment discrimination proceeding. The potential for a retaliation claim arises when an employer takes an adverse employment action against an employee after the employee has engaged in statutorily protected activity. Additionally, an employee can succeed on a retaliation claim even if the underlying allegation of discrimination fails, making it doubly important that employers take proactive steps to monitor for and prevent retaliation.

    Prompt and informed actions by an employer's human resources department can prevent or severely lessen the risk of a subsequent retaliation claim. To guard against retaliation claims by employees, employers should do the following:

    Adopt and Disseminate an Anti-Retaliation Policy

    Far too often, employers fail to give sufficient attention to their anti-retaliation policies. To prevent claims of retaliation, employers must first adopt an anti-retaliation policy that adequately defines retaliation, provides examples of retaliatory conduct and emphasizes that retaliation is strictly prohibited. The anti-retaliation policy should clearly state that retaliation of any kind is prohibited by federal, state and local laws, as well as by the employer's own policies. The policy should also establish a complaint procedure for employees to report perceived or actual retaliation. It is important to assure employees that complaints of retaliation will be kept as confidential as possible, because, like other forms of discrimination, employers must rely on employees to report instances of retaliation by encouraging employees who experience or witness retaliation to file internal complaints.

    Institute a Comprehensive Training Program

    A company's human resources department and managerial staff are on the forefront of ferreting out retaliatory treatment, and must be equipped with the proper tools to identify and prevent retaliation. Employers should implement a comprehensive training program that familiarizes managers and human resources personnel with the company's anti-retaliation policy. Additionally, the training should provide trainees with examples of retaliatory conduct and afford an opportunity for hands-on experiential training in identifying scenarios that present a high risk of retaliation claims. To be effective, the training program should also emphasize the legal ramifications of retaliation, which in some instances, such as under the Pennsylvania Human Relations Act, can result in individual liability.

    Monitor Post-Complaint Treatment of Employees

    The human resources department should closely monitor the treatment of employees who have complained of discrimination in order to identify instances of retaliatory treatment. As there is no timeframe in which the retaliatory conduct must occur, the length of monitoring the post-complaint treatment of employees should be determined on a case-by-case basis. As a rule of thumb, to be effective, monitoring must last for at least six months to one year. It is important that all employees are treated fairly in all aspects and conditions of employment. Vigilant monitoring of how company policies are applied to a complaining employee can prevent subsequent retaliation claims. To that end, any actions taken against an employee during the post-complaint monitoring period should be documented, justified by legitimate nondiscriminatory reasons and placed in the employee's personnel file.

    Retaliation may often be inadvertent or subconscious. This is particularly true when a complaint of discrimination lodged against an employee's direct supervisor has subsequently been determined to be unsubstantiated. Managers should be reminded that any actions they take against an employee who has engaged in protected activity may be construed as retaliatory. Therefore, employers should require managers to get approval from the human resources department and, when necessary, the company's legal department or outside counsel, before taking any adverse employment actions against an employee who has recently complained of discrimination.

    Investigate and Resolve Internal Allegations

    In the event that an employee complains of retaliation or the human resources department identifies an instance of retaliation, it must be promptly, thoroughly and objectively investigated. Employers should take all complaints of retaliation seriously and undertake a full investigation. Transparency toward the complaining employee will go a long way in preventing a subsequent retaliation lawsuit; therefore, it is imperative that employers regularly communicate with the complaining employee regarding the status of the investigation. When resolving the complaint, an employer should adhere to its internal anti-retaliation policy regarding taking the appropriate corrective actions to remedy the unlawful conduct.

    Retaliation claims are often the culmination of several missed opportunities to prevent unfair treatment in the workplace. Employers that adopt a big-picture approach to identify and investigate retaliatory conduct are more likely to prevent claims of retaliation. By adopting a strict anti-retaliation policy, training managers and human resources personnel, monitoring the treatment of employees to identify potential retaliation, and promptly investigating allegations of retaliation, employers can confront and prevent the ever-growing problem of retaliation claims.