I may be stating the obvious here, but it is illegal to fire an employee based on complaints regarding company discrimination or harassment. As the name implies, retaliation is the term used to describe any unlawful action a fellow employee takes against another to "punish" an employee for complaining about discrimination or harassment. Ok, glad I got that out of the way. Now here are the top 5 ways to avoid a retaliation lawsuit...
1. Confidentiality is Clutch- a good rule of thumb is to keep complaints private. Not only will this policy foster open lines of communication, and make employees feel more comfortable discussing illegal patterns of behavior, but it will also limit the number of people that would even want to retaliate against an employee. Simply put, the fewer people that know about a complaint, the smaller the circle for potential retaliation becomes.
2. Educate- why does this seem to be the solution to so many workplace problems? Because informing employees and management about the nature of retaliation (or any potential workplace issue) and the many forms it takes will serve to put everyone on alert.
3. Create a Company Policy- putting in place a company policy against retaliation goes along the same thread as educating employees. The policy should make it clear that the company does not stand for any form of retaliation, and provide an outlet for those employees that feel they are being a victim of retaliation. Given the realities of retaliation, and their potential to deter complaints, creating a company policy will not only make for uniformity but also help create more comfortable work environment overall. The more opportunities an employee has to discuss concerns, the less likely (hopefully) she or he will feel like discussing them with their lawyer.
4. Document- As with any workplace issue, documenting everything is an essential approach both on a preventative and defense level. Keeping track of complaints, actions taken, and other issues relating to a potential retaliation case is just smart business. If you must take adverse action against an employee who has complained, be prepared to show that you had valid reasons for discipline, unrelated to the complaint.
5. Action- In many scenarios that did not result in a firing, an employee will bring a retaliation lawsuit because he or she felt that the company did not act to protect them. Putting an internal action plan in place that protects the complaining individual and punishes the retaliating individual will help to combat any potential litigation.
So there is the CEPDA (Confidentiality, Educate, Policy, Document, Action) to help avoid a retaliation lawsuit. In the end, retaliation lawsuits are on the rise and the scary truth to these cases (aside from the potential punitive damages) is that even if an employer can prove that the original complaint is unfounded, adverse action based on the complaint is enough to make for a lawsuit.
- Preventing Retaliation Claims by Employees (FindLaw)
- Does Title IX Prohibit Retaliation Against Coaches Who Point Out Sex Discrimination? (FindLaw's Writ)
- The Supreme Court Rules in Favor of Broader Protection for Employees Who Suffer Retaliation When They Complain About Discrimination (FindLaw's Writ)