It took years, but now it’s happened: You’re more likely to get in trouble for maltreating a discrimination complainant than for discriminating in the first place.
That startling fact about retaliation – defined as adverse action against an employee for activity protected by law, like a discrimination complaint – emerges from the latest EEOC charge statistics, for 2010.
From 1997 on, retaliation lagged behind various kinds of discrimination (mainly race and sex) as the charge most often filed by employees with the EEOC. Many of these charges, of course, later turn into lawsuits.
In 2009, though, retaliation caught up with race, and in 2010, passed it: Employees lodged 36,258 retaliation charges, 36.3% of all charges, ahead of 35,890 charges of race discrimination, 36%.
Employment law specialists cite several reasons for the popularity of retaliation charges with employees and their lawyers – recent Supreme Court decisions favorable to retaliation plaintiffs, the relative ease of proving retaliation compared with discrimination, and a greater chance of punitive damages.
But whatever the reasons, prudent HR people don’t want to see their organization slapped with a retaliation charge.
Here are four steps you can take to avert that outcome:
1. Watch ‘temporal proximity’
In judging retaliation cases, courts look hard at whether the adverse action – termination, demotion, bad performance review, etc. – took place soon after the employee’s protected activity. Even if you have excellent reasons that have nothing to do with the employee’s activity, if your action comes soon afterward it’ll look legally shaky.
Best bet: Try to withhold any discipline or other action for at least a few weeks after the protected activity.
2. Maintain air-tight documentation
This is the very best way to prove your adverse action is unconnected with the employee’s discrimination complaint or other protected activity.
If you have ample, timely documentation of the performance or conduct problems you’re disciplining the employee for, the person will have a hard time convincing a judge or jury that what you did was retaliation, and not just good personnel practice.
3. Keep your decision-making process untainted
Typically adverse action comes after several people – a supervisor, perhaps a mid-manager, one or more HR reps – discuss what to do about a problem employee.
It’s HR’s job to make sure no one taking part in the decision has a bone to pick. Even if you’re 100% impartial, and all participants but one are, too, that one vindictive individual – maybe a fed-up supervisor – can make the process appear tainted and set you up for a retaliation lawsuit.
4. Remember how broad ‘adverse action’ is
Since the Burlington Northern v. White retaliation case was decided by the Supreme Court in 2006, adverse action has taken on a very broad meaning – almost anything that would discourage employees from making retaliation charges. Say a manager changes the schedule of an employee who has engaged in protected activity, such that she can’t get out in time to pick her kids up from school. She might be able to convince a judge she was retaliated against.
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