Retaliation: Four Key Mistakes That Supervisors Must Avoid

Access this training video now and discover what common management mistakes too often lead to employee retaliation lawsuits. You’ll learn:

  • What retaliation is – and isn’t
  • Why even conscientious, fair supervisors may be at risk for creating a retaliation claim, and
  • Four common mistakes that can get you accused of retaliation and how to avoid them.

Why are we giving you access to this program for free? Because it’s the best way we know to introduce you to a new approach to employment law compliance training.

Here’s how it works: Request your training video on employee retaliation now and we’ll email you a user name and password that gives you instant access to the Employment Law Compliance & Human Resources Rapid Learning Centers. There you’ll find your employee retaliation training video and a collection of other training resources for managers, supervisors and HR professionals. You’ll have unlimited trial access to this powerful library of e-learning modules, reports and fast-read articles.

The legal definition of employee retaliation

Retaliation has a specific meaning under the law. It’s an “adverse action” against anyone who has engaged in so-called “protected activity.”

“Protected activity” is an action an employee is legally entitled to take, such as:

  • Complaining, formally or informally, of illegal discrimination or harassment
  • Supporting someone else’s discrimination or harassment complaint by, say, appearing as a witness
  • Refusing an order the person believes is discriminatory or harassing

“Adverse action” is a little harder to pin down. Its most common forms are:

  • Termination
  • Demotion
  • Loss of pay

Not every little unpleasantness is considered retaliation, though. Colleagues who turn cool toward an employee who makes a complaint or a single instance of an employee calling the complainant a tattletale aren’t enough to be considered retaliation. The courts call these acts “petty slights and minor annoyances.”

Nor does the law prohibit bosses from taking any action against an employee who engaged in protected activity. They can still discipline employees – as long as the discipline isn’t triggered by the protected activity.

The Four Most Common Employee Retaliation Mistakes

Because the legal definition of retaliation is so open-ended, it’s easy for managers to make mistakes that result in retaliation claims. Your training video will go into greater detail about each of these and provide strategies to prevent them, but here are the most common mistakes that lead to employee retaliation claims.

Employee Retaliation Mistake One – temporal proximity. Disciplining or critically evaluating employees soon after they’ve engaged in protected activity.

Employee Retaliation Mistake Two – poor documentation of performance problems. If you DO need to discipline a person who has complained of discrimination, you need to be absolutely sure you can prove you would have done the same thing even if the person hadn’t engaged in the protected activity.

Employee Retaliation Mistake Three – “disguised” retaliation. Such actions aren’t punitive by definition, but do adversely affect the employee.

Here’s an example: An employee who’s complained of discrimination needs to get home by 3 p.m. to meet her disabled child returning from school. Her supervisor changes her shift, and as a result she can’t be home in time. Even though she hasn’t been disciplined, or her pay or position affected, she might still be able to make a retaliation charge stick.

Employee Retaliation Mistake Four – Excluding an employee from ordinary workplace activities. As we’ve seen, petty slights and minor annoyances don’t constitute retaliation. But if you or others start shutting the employee out of essential work related conversations or meetings, that behavior COULD be seen as retaliatory.

Since there’s no hard-and-fast rule on what’s okay and what’s not, the best approach is to insist that nobody treat an employee differently just because he or she has filed a complaint or engaged in other protected activity.

Be sure every manager on your team understands this complex and critical area of employment law. Access this video now as part of a free trial to the Employment Law Compliance & Human Resources Rapid Learning Centers.


Steve Meyer
Stephen Meyer
CEO, Rapid Learning Institute


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