Retaliation: From bad to worse

by on December 12, 2012 · 0 Comment POSTED IN: HR Cafe

Managers often make one of two mistakes when dealing with employee complaints of harassment, discrimination and the like:

  • They ignore the complaint
  • They punish the person for complaining

The first reaction is bad, and may get the organization in legal trouble over the alleged harassment or discrimination.

But the second reaction is even worse. It leaves the complaint unresolved and creates another source for legal action by the employee: retaliation.

Pique or ignorance
No manager wants to make a bad situation worse, but sometimes that’s what managers do, either out of pique or – just as frequently – a lack of knowledge.

Under the law, it’s retaliation when an employer takes adverse action against an employee either for making a good-faith complaint of harassment or discrimination, or for exercising other legal rights like taking FMLA leave or filing a workers compensation claim.

Here’s an example of what can happen:

A relatively new employee accuses a valued, veteran co-worker of harassment. The supervisor investigates and finds the veteran was grouchy with the newbie, but didn’t harass her. A couple of weeks later, the employee who complained makes a performance mistake, and the supervisor – no doubt with the recent trouble she caused on his mind – writes her up.

Only problem is, the supervisor hasn’t disciplined other employees for similar mistakes in the past. A court would probably find that he illegally retaliated against the complainer.

Adverse action
In light of such danger, HR people need to make sure that line managers:

  • understand the concept of adverse action (defined as anything that would deter a reasonable employee from engaging in legally protected activity), and
  • check with HR before taking such action against any employee who recently made a discrimination complaint, took FMLA leave or filed for workers compensation.

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