Just when you thought you had enough on your plate, your company is hit with a discrimination claim. After reviewing the allegations, you know for a fact they are not true and can’t believe this employee is accusing you of discrimination! In response, you decide to keep your distance from this employee; you avoid speaking with them and maybe even move them to an area further away from you. Then the employee violates a company policy and, although you normally wouldn’t terminate someone for this incident, you feel it’s best to let go of this employee while you have the chance. But doing this can now give this employee grounds for retaliation and it could be more costly than the initial discrimination claim.
On December 12, 2023, a California jury awarded a NICU nurse $41.5 million in damages; while her claim alleging discrimination based on age and disability was ultimately thrown out, the company engaged in retaliation after she raised concerns about patient health and safety with her superiors. After voicing concerns, her supervisors began treating her differently, refused to cooperate with her or provide information that she needed as a charge nurse, and eventually terminated her employment for an incident that typically was not a terminable offense.
When evaluating claims involving discrimination, the court system, or agencies like the EEOC have the difficult task of determining whether someone was targeted due to a protected class or if the employee was simply “difficult” or adverse action taken was unrelated to their protected class status. However, retaliation tends to be easier to prove; it’s easier to connect the dots to retaliation when an employee is moved to a less desirable area or task, gets the silent treatment from managers, or is let go after raising a concern or filing a complaint.
The amount of retaliation charges with the EEOC has been on the rise in recent years, with 51.6% of charges filed in FY 2022 involving a claim of retaliation; 10 years prior, retaliation only accounted for 38.1% of charges. With this growing trend, it’s important to make sure you keep your business protected from retaliation claims.
First, make sure you have procedures in place to promptly investigate any claims of discrimination, harassment, or safety concerns. You should have a written policy that provides a statement on behavior that is not tolerated, how an employee can report discrimination, harassment, or safety concerns, and how the complaint will be investigated. All employees should receive a copy of this policy and receive training on harassment.
Take a zero-tolerance stance on retaliation. A non-retaliation statement should be included in your policies, and you should investigate any claims of retaliation. When speaking with the employee making a complaint you should also remind them of your non-retaliation policy and that they should immediately speak with you should they believe they are being retaliated against.
Educate your supervisors on appropriate action when it comes to complaints both brought to their attention and against them. It’s one thing for a supervisor to know how to handle complaint procedures but it’s completely different for a supervisor to be accused of being the perpetrator of wrongdoing, especially if they believe they are innocent. Make sure they are aware of your company's stance against retaliation and what could be seen as retaliation, such as:
- Moving the employee to a less desirable work area
- Refusing to speak to the employee when the job requires communication
- Giving a performance evaluation lower than it should be compared to other employees performing similarly
- Issuing harsher punishment than what other employees would normally receive for similar circumstances
- Increasing scrutiny over the employee’s performance
- Purposefully changing the employee’s work schedule in a way that conflicts with personal responsibilities
Encourage your supervisors to speak with you if they have concerns about continuing to work with the employee to make sure they do not make any mistakes that could come back to haunt you.
If you have an employee who is claiming they are being retaliated against or need help with proactively guarding your company against retaliation claims, reach out to your FrankAdvice HR Consultant.