Retaliation occurs when an employer takes adverse action against an employee or job applicant for participating in legally protected activity or because he or she opposed some action on the part of the employer. For example, an employer may not discipline, demote, terminate, threaten, or otherwise harass an employee for filing a discrimination charge or for participating in a discrimination proceeding. Nor can the employer take such action because an employee made a request for a reasonable accommodation based on religion or disability. Similarly, an employer may not take adverse action against an individual closely associated with someone who has engaged in a protected activity. For example, in Thompson v. North American Stainless, NP (U.S. 2011), the Supreme Court found in favor of Eric Thompson who claimed he was terminated because his fiancée and co-worker, Miriam Regalado, had filed an Equal Employment Opportunity Commission (EEOC) charge against their employer.
The law prohibits retaliation in all aspects of employment—including hiring, terminations, compensation, job assignments, promotions, layoffs, training, fringe benefits, and any other term or condition of employment. Discipline, demotion, termination, threats, and other forms of harassment are obvious, but more subtle forms of retaliation include moving the employee to a less desirable work space or changing his or her work hours to something less preferable.
In 2014, retaliation composed the largest percentage of charges made to the EEOC at 42.8 percent. Ten years ago, retaliation was only 28.6 percent of charges filed, ranking it third behind race and sex discrimination charges. Remember, a retaliation claim can go forward even when the underlying claim is found to have no merit. As an employer, what steps have you taken to minimize your potential exposure to retaliation claims? Do you:
- Have anti-harassment, discrimination, and retaliation policies in place?
- Provide more than one avenue for an employee to bring a complaint or concern to management’s attention?
- Respond quickly and carefully when an employee does bring a complaint of harassment or discrimination?
- Monitor the treatment of an employee who complains of discrimination or provides information related to discrimination to ensure the employee is not subject to retaliation?
- Train all employees on the organization’s policy against retaliation?
- Train your supervisors and managers about what constitutes retaliation and how to respond when a complaint is brought to their attention? (If so, do you have a record of who participated in this training?)
- Have a process whereby an HR professional, employment law attorney, or skip-level manager reviews any proposed written warning, demotion, or termination before such action is taken to ensure fairness?
Retaliation claims are not only on the rise, they can be extremely costly. Take steps to ensure you understand what constitutes retaliation and then put rigorous procedures in place to minimize your risk.