In order to prevent illegal retaliation from occurring in your workplace, you have to understand some basic definitions.
- Retaliation occurs when an employer takes an adverse action against a covered individual because he or she engaged in a protected activity.
- An adverse action is taken to keep someone from opposing a discriminatory or harassing practice or participating in an employment discrimination proceeding. Examples of adverse actions include terminating an employee, denying a promotion and giving an unjustified negative performance evaluation.
- For purposes of federal employment laws administered by the EEOC, covered individuals are people who have opposed unlawful practices, participated in proceedings, or requested accommodations related to employment discrimination based on race, color, sex, religion, national origin, age, or disability. Individuals who have a close association with someone who has engaged in protected activity are also covered. For example, it is illegal to terminate an employee because his spouse (who is also an employee) participated in employment discrimination litigation.
- Note: In addition to the employment laws administered by the EEOC, retaliation can occur against individuals who may be protected by other federal, state, or local laws. This includes the federal Family Medical Leave Act and whistleblower laws that bring attention to ethical, financial, or other concerns.
- Protected activity includes opposing a practice believed to be unlawful discrimination. For example, an employee complaining about treatment he or she believes is discriminatory — directed at the employee or a co-worker. Protected activity also includes participating in an employment discrimination proceeding or requesting a reasonable accommodation based on religion or disability.
Cases of retaliation may not be as simple as they may seem. They don’t just involve an employee making a claim of harassment or discrimination. They might involve co-workers, witnesses and family members of the employee. There are several steps you can take to help prevent retaliation at your organization. For example, investigate complaints promptly. Once a complaint has been made by an employee, be careful about making work changes, such as transfers or modifications in responsibilities and schedules. Consult with an attorney or HR adviser before taking disciplinary actions that could be considered retaliatory, such as written reprimands, demotions or terminations. Don’t monitor people who file complaints more closely than others. Make sure they aren’t ostracized by managers. Be aware that even if the initial discrimination allegation is found to lack merit, employers are still liable for retaliation. The company should make sure there is a legitimate reason for any perceived adverse action taken against an employee as a defense against a retaliation claim.
Keep an open door policy. Have a culture where staff members feel comfortable reporting problems to company officials, rather than someone outside the organization. Train supervisors about what constitutes retaliation and how to avoid it. Make it clear in written policies and in verbal discussions that retaliation will not be tolerated and will result in discipline.