Retaliation is one of most common ways that otherwise well-meaning employers stumble into legal liability.
When an employee complains of "retaliation," it's important for you as an employer to accurately determine what is at stake. Sometimes an employee feels retaliated against because a manager or coworker responds negatively to the employee's words or actions. These situations can be stressful and harmful to company culture, but they are not necessarily unlawful. Only retaliation against "protected activity" can create legal liability.
An employee engages in "protected activity" when he or she complains of being subjected to discrimination or harassment because of a "protected characteristic" such as race, color, national origin, religion, sex (including pregnancy or sexual orientation), age, disability, and veteran status. An employee also engages in "protected activity" when he or she participates in an investigation of such a complaint. If the employer then takes adverse action against that employee-such as firing, demoting, cutting hours, downgrading assignments, or denying opportunities-because of the employee's protected activity, the company may be held liable for unlawful retaliation.
Here are four best practices for employers to avoid liability for unlawful retaliation: First, create a company culture that encourages respect and discourages all forms of retaliatory behavior. Second, document performance issues consistently. Third, after receiving a protected complaint, investigate it and document the findings. Finally, if the company needs to take adverse action against an employee who has earlier engaged in protected activity, carefully document all the legitimate, non-retaliatory reasons for taking the action. This documentation will be the company's best defense should the employee file a charge of unlawful retaliation with the UALD or EEOC.
Our firm's goal is to help you build a positive, legally compliant workplace that protects both your people and your business. If you need advice about retaliation or any other employment-related issues, give us a call. We're here to help.
