Retaliation is a common complaint by an employee – and one which employers frequently lose. It is possible for an employer to be guilty of retaliation, even when there was no underlying discrimination or harassment.
“Retaliation” means that an employer may not fire, demote, harass or otherwise adversely impact or retaliate against an employee for: (1) filing a charge of discrimination, (2) participating in a discrimination proceeding, or (3) otherwise opposing discrimination. Essentially, anything that would tend to have a “chilling effect” on an employee’s decision to file a complaint or participate in an investigation is considered “retaliation.”
An employer can help avoid a claim of retaliation by refraining from taking any adverse action or attempting to discourage an employee from the following types of actions:
- filing an internal or external complaint of discrimination or harassment for himself or anyone else;
- serving as a witness in an investigation or proceeding related to another person’s complaint of discrimination or harassment;
- informing another employee of their right to file a complaint of discrimination, harassment or request for a reasonable accommodation;
- encouraging another employee to file a complaint of discrimination or harassment.
However, retaliation claims do not make an employee “fire proof.” A court must still find that the employer acted in retaliation because of the employee’s protected action. If you find yourself in a situation where an employee has engaged in protected activity, but that employee has also engaged in conduct that merits disciplinary action, or you have a business reason to re-assign or terminate that employee (such as a reduction-in-force), you should thoroughly document the non-retaliatory reasons for your decision. If you must take action within a short period of time after the employee’s protected actions (up to three or six months), you should consult with an HR or employment law specialist to determine the best way to proceed.
By: Cynthia W. Veidt, Attorney