Minimizing Risk of Retaliation Claims Is As Easy As A B C
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In last week’s #EEOChat, the issue of retaliation came up. How much do you know about retaliation claims? Retaliation claims are on the rise. Among all charges filed with the EEOC in 2009, 36% included a claim of retaliation; this represents an increase of approximately 70% over the last decade.

In her May 3, 2010 article on retaliation, Karen Gieselman, an attorney in the Columbia office of Fisher & Phillips, states:

Generally, to assert a retaliation claim individuals must show three things: 1) they engaged in a protected activity, such as testifying regarding discrimination or opposing an unlawful activity; 2) there was an adverse employment action (e.g. termination or denial of a raise); and 3) there is a connection between the protected activity and the adverse action.

According to Ms. Geiselman, retaliation claims have become “tougher to defend and more expensive to resolve”. She raises an interesting point: an employee can prevail on a claim of retaliation even if he doesn’t prevail on the underlying complaint of discrimination:

It’s easier for a juror to believe that a manager or supervisor changed his or her behavior towards a ‘squeal’, that it is for a juror to believe that the same manager or supervisor discriminated against the same employee.

There are three simple steps employers can take to reduce exposure to retaliation claims:

A. Adopt a stand-alone anti-retaliation policy that sets out the prohibition against retaliation and the procedures for redress. A stand-alone policy not only demonstrates that the employer is committed to non-retaliation, it can also be used as evidence in the event that an employee files a retaliation claim in the future.

B. Before an adverse employment action is taken against an employee who has participated in a “protected activity”, that action should be reviewed by appropriate management personnel and legal counsel. The reviewers should consider whether the proposed action is consistent with the employer’s typical practice and whether the action is supported by appropriate documentation.

C. Counsel and train managers and supervisors about retaliation, the organization’s anti-retaliation policy, and how to respond when a complaint is brought to their attention. The employer should also keep documentation on the training (e.g., who received training, what was covered, when the training took place, etc.).

While these three steps won’t guarantee that you’ll be free from retaliation claims, they will help to minimize the risk and can assist in your defense should you find youself in retaliation litigation.