You already know that it’s illegal to retaliate against employees for making good-faith claims that they’ve been discriminated against in the workplace.
But do your front-line supervisors know how to act so as to avoid retaliation claims?
It’s not always that obvious, especially since the courts have now defined retaliation not just as termination or other disciplinary action, but also as anything that would stop a reasonable person from complaining about discrimination. “Anything” may be something very specific to the situation of the employee and the conditions of his/her job.
Pinning retaliation down
To give you a concrete idea of what “anything” might mean, consider recent court decisions holding that retaliation included:
- Taking a class away from a teacher and assigning her office work
- Putting female police officers with young children on night watch, so that they had to arrange child care
- Stigmatizing an African-American employee by transferring her to a warehouse seen by co-workers as a place for “problem” employees
So, back to your supervisors. Consider training them on the following action steps they can take to help your organization stay on the right side of the law.
- Remember that employees who have complained may be extra sensitive to the possibility of retaliation. If personnel action affecting them is taken, supervisors must be ready to explain good business reasons for the action. And they must have those reasons documented.
- Where possible, defer personnel action involving such employees. Six months or more is a defensible timeline. If supervisors feel they must act sooner, they should loop HR in first.
- Look for any special circumstances in an employee’s life that might make him or her see a given action as unfavorable.
- Allow employees to respond when informing them of personnel action. If the person has good grounds for considering the action unfavorable, he or she will likely speak up.
- Not let co-workers “ride” employees about an action the supervisor has taken. Sometimes an employee’s view of adverse action is influenced by what his or her peers have to say.
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