Most employment discrimination laws not only make it illegal to discriminate against protected groups, but also prohibit retaliation against an employee who makes a claim of discrimination or harassment in the workplace.

What Is Retaliation?

Retaliation is any adverse employment action taken against an employee who complained of discrimination, harassment, or a violation of workplace law. Adverse action against an employee who participates in the investigation of one of these complaints is also considered retaliation.

What Constitutes Adverse Employment Action?

What constitutes an adverse employment action is different from state to state. Generally, adverse employment action is defined broadly as any adverse treatment that would be reasonably likely to deter protected activity such as making a claim of discrimination. Some examples that might be considered adverse employment action include:

  • Termination
  • Demotion
  • Verbal or physical abuse
  • 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 files a complaint for 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:

  • Create a clear 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.
  • Maintain communication with the employee claiming discrimination – Inform the employee claiming discrimination of every step in the investigation.
  • Document all steps in addressing the complaint - Be sure to document and record any steps you take in dealing with complaint and retaliation issues.
  • Ensure confidentiality of complaints – Take steps to keep the complaint confidential from general employees. Only inform those needed to properly conduct the investigation of the complaint.

What Is Allowed?

Adverse employment action only constitutes retaliation if it is done in response to an employee asserting his/her rights under workplace law. Adverse action is allowed against employees for ordinary job performance issues such as:

  • Negative evaluations for poor work product
  • Discipline for an employee who is habitually late
  • Firing the employee for sexual harassing other employees

If you are concerned that an employee may file an unfounded claim of retaliation in response to an adverse employment action, it is good practice to create a record of the employee conduct justifying the adverse action (negative performance reviews, emails regarding poor employee behavior, negative feedback from company clients, etc.).

Do I Need a Lawyer to Help Me with My Retaliation Problem?

Employment discrimination law is very complex and varies from state to state. An experienced employment 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.