What is Retaliation in the Employment Discrimination Context and How Do I Prevent it?
Most employment discrimination laws not only make it illegal to discriminate against protected groups, but also prohibit retaliation against an employee who asserted his/her rights under the law.
What is Retaliation?
Retaliation is any adverse employment action taken against an employee who complained of discrimination, harassment, or a violation of workplace law. It is also retaliation to take adverse action against an employee who participates in an investigation of one of these problems. Adverse action can be taken by the employer, managers, or fellow employees.
What Constitutes Adverse Employment Action?
Many things can qualify as adverse employment action. Some of the more common examples include:- Firing
- Demotion
- Discipline
- Negative evaluations
- Change in job or shift assignment
- Hostile behavior or attitude
The Best Intentions May Not Be Enough
Even if you have good intentions, you may end up retaliating against the employee without intending to. For example:- Suppose a female employee complains of sexual harassment in one of your stores, so you transfer her to another store where she will not have to work with the harasser. This could constitute retaliation, especially if the employee preferred the store she already worked at or it was closer to her home.
In the above example, the focus was on the complaining employee. You made a change to her schedule as opposed to taking steps to stop the wrongful conduct. In order to avoid retaliation claims, the first step is to ensure that you focus on the wrong that has or is being done, not the injured employee. You need to fix the problem, not remove the injured employee from the problem situation.
Tips on How to Avoid Retaliation in the Workplace
There are many steps you can take to reduce the likelihood of retaliation in the workplace. Here are a few steps to consider:- Come up with and make clear a policy against retaliation ¿ Inform your employees of what retaliation is and make it clear that you will not tolerate it; tell your employees what to do if they feel that have been retaliated against.
- Communicate with complaining employees ¿ Let complaining employees know that you take his/her complaint seriously and will not tolerate retaliation.
- Document any steps you take ¿ Be sure to document and record any steps you take in dealing with complaint and retaliation issues.
- Ensure confidentiality of complaints ¿ If people don¿t know about the complaint or who complained, they can¿t retaliate against anyone.
What Is Allowed?
Adverse employment action only constitutes retaliation is it is done in response to an employee asserting his/her rights under workplace law. You are allowed to take adverse action against employees for other reasons and a few examples of what is allowed include:- Negative evaluations for poor performance
- Discipline for an employee who is habitually late
- Firing the employee for sexual harassing other employees
A concern for many employers is that if you take adverse action against one of thee types of employees, s/he will complain it was retaliation. The best advice is to always be prepared and have valid reasons for the action you take.
Do I Need a Lawyer to Help Me with My Retaliation Problem?
Employment discrimination law is very complex and the different laws call for different steps to be taken. An experienced employment discrimination lawyer can help you is a retaliation claim is brought against you. Also, if you feel you are the victim of retaliation, a lawyer experienced in employment discrimination can help you figure out what steps you need to take. |
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