When an employee complains about discrimination or harassment – to either the employer, to a government agency, or to someone within your business – the company must treat that employee and the situation with upmost care. If you take any action that the employee might view as punishment or retaliation for the complaint, you might find yourself on the wrong end of a lawsuit. All employers, managers, supervisors, and human resources representatives should become familiar with the law of retaliation because retaliation claims are becoming more and more common. And they are also becoming more costly.
Point #1: Retaliation Defined
Retaliation means any adverse action that you or someone who works for you takes against an employee because he or she complained about harassment or discrimination. Any negative action that would deter a reasonable employee in the same situation from making a complaint qualifies as retaliation. Even employees who participate in an investigation of any of these problems are also protected. For example, you cannot punish an employee for giving a statement to a government agency that is looking into a discrimination claim or for participating in an internal investigation of harassment. And here’s the kicker – even if the original complaint of discrimination or harassment turns out to be unfounded, an employee who can prove that something negative happened them because of the complaint can still win a retaliation claim.
Point #2: Adverse Action – What is It?
Adverse action includes demotion, discipline, firing, salary reduction, negative evaluation, change in job assignment, or change in shift assignment. Retaliation can also include hostile behavior or attitudes, toward an employee who complains. In fact, sometimes an employee can claim retaliation if another employee complains. For example, the Supreme Court has held that a man who was fired shortly after his fiancee (who worked for the same employer) filed a discrimination charge could sue for retaliation.
Point #3: Retaliation Need Not Be Intended
Although retaliation obviously includes any action that you take with the intent to harm or punish the employee for complaining, it can also include actions that you take with the best of intentions, if those actions have a negative impact on the employee. Here are a couple of examples:
- a female employee complains that her supervisor is sexually harassing her. In response, you change the employee from the day shift to the night shift so that she doesn’t have to work with the supervisor any more. Even though you didn’t intend to hurt the employee, this action could be retaliatory if the employee preferred the day shift.
- An African-American employee complains to you that the store in which he works is racially hostile toward him because his coworkers tell racial jokes and call him racially derogatory names. In response, you transfer the employee to another store. This action could be retaliatory if the new store is farther from the employee’s home or the position is less desirable in some other way.
If you are facing a decision concerning this issue, please contact our office for a consultation.