THE LAW IS AN IDIOM
Here’s a little fact that may knock your socks off: according to the EEOC, retaliation is the most frequently alleged civil rights charge in the federal sector and has been for nearly a decade. In West Virginia, retaliation claims comprise approximately one third of such cases, and that’s nothing to turn a blind eye to. Retaliation claims tend to hitch their wagons to claims for other forms of discrimination or harassment; yet, it’s pretty common for the underlying discrimination claim to disappear in a puff of smoke while the retaliation claim keeps on trucking. This is a tune we’ve been singing for years on this blog, but with the EEOC taking a closer look at retaliation, we’ve got a few tricks up our sleeves to help stop retaliation in its tracks.
While it may be as obvious as the nose on my face, step one would be to reduce discrimination claims. While some folks seem to always have an ax to grind, employers can do something about employees who have a real beef. You probably (hopefully) have a company anti-discrimination policy, so use it. Make sure your employees are treated consistently and in accordance with this policy. Remember too: actions speak louder than words when it comes to zero tolerance for harassment and discrimination. So, make sure that elimination of discrimination is a value held from the top down in your organization. Fewer discrimination claims = fewer retaliation claims.
The next step you can take is to go the extra mile when you investigate complaints. Document what you do and when you do it. Certainly, I’m preaching to the choir when I remind you of the importance of keeping the investigation as confidential as possible, within the bounds of what the law permits. This is particularly vital with regard to claims of retaliation because the fewer people who know about the complaint and the investigation, the fewer people who could possibly retaliate.
Make no bones about it: you must have a written company policy prohibiting retaliation. You will remind the complainant at the conclusion of the investigation not to keep mum if s/he experiences what they believe to be retaliation for their complaint. You will remind the accused and witnesses that retaliation is prohibited. Don’t beat around the bush with your employees; instead, train them on what retaliation is so they can spot it and stop it dead in its tracks. Remember, the EEOC boils retaliation down to three key phrases: retaliation occurs when an employer takes an adverse action against a covered employee for engaging in a protected activity. For example, an adverse action can run the gamut from telling an employee to hit the road to moving him to the graveyard shift. It all depends upon the circumstances. A covered employee can be someone who has requested leave or a reasonable accommodation or may be the person we’ve been talking about who made a complaint about something she reasonably believed to be an unlawful practice. Protected activities are usually as simple as you might expect: filing a charge of discrimination, participating in an investigation of discrimination, or requesting a reasonable accommodation based upon disability or religion.
Finally, with retaliation claims, timing is EVERYTHING. In most cases, timing is the best evidence a plaintiff has of retaliation. It goes like this: a complaint is made, investigated, and resolved under the company’s policy. Before the complaint was made, however, the employee was treading water at the company, and his career was on its last legs. If you’re lucky, your supervisor was on the ball, documenting the problems, the counseling, and the warning to shape up or ship out. So, when the last straw finally breaks the camel’s back, you will have the documentation to support the adverse action you are about to take with the employee. In each instance, you must look before you leap into taking an adverse employment action against an employee who has recently been involved in protected activity. If the timing, documentation, or past practice do not support the decision you are about to make, put the brakes on it before it costs you an arm and a leg in court. Assuming the conduct is not something that must be immediately nipped in the bud, get your ducks in a row by going back to the drawing board with the employee and documenting it properly the second time around.
While you should be glad to see the end of any claim for discrimination or harassment, the remaining retaliation claim can prove to be a tough customer to defend. As they say, an ounce of prevention is worth a pound of cure. Whether we see eye to eye on the matter, or maybe you think I’m off my rocker, I’d love to hear your Views about how you dodge the bullet of retaliation claims.