The Retaliation Dilemma

Avoiding Retaliation Claims

How can organizations reduce the odds of triggering retaliation claims, and limit the threat of paying out millions in punitive damages in this new landscape? Employment law attorneys offer some suggestions.

Create clear and well-communicated anti-retaliation policies. Existing policies and standards should be updated to reflect implications of the 2006 Supreme Court decision. It’s also important to establish proper channels for filing retaliation complaints and to communicate to employees how those complaints will be investigated. Creation of these stand-alone policies can aid an organization’s defense when employees claim retaliation but haven’t followed a published policy.

In addition, company managers and supervisors should be trained on the standards. Anti-retaliation policies are only useful to the extent that managers and supervisors know how to apply them. “In many retaliation cases I see, managers don’t realize their actions could be retaliatory,” Boisvert says. “Some don’t think about it, or they don’t run it by human resources or legal before acting.”

“You want your managers to be able to recognize what might be fertile ground for a retaliation claim” in light of the new high-court decision, Egan says.

It’s important that management understand the dangers of tinkering with the “status quo” of employees in the time directly following complaints, Egan says, as well as the importance of soliciting expert opinion in human resources or legal before making decisions that might have an adverse effect on complaining employees. These reviewers can help ensure the proposed action is consistent with the organization’s standard practices in such scenarios, has a legitimate business purpose, and is properly supported with documentation.

Helping managers control their emotions is another central part of training, Boisvert says. It’s human nature for those accused of wrongdoing to become defensive or even strike back following complaints. But making a good-faith discrimination complaint is a legally protected activity, and the accused have to exhibit a high level of restraint if they’ve been singled out.

Centralized human resource functions and good communication practices also help avoid the common problem of the left hand being unaware of the right’s actions. An employee might file a discrimination complaint against a top manager, for example, but his direct supervisor may not be made aware of it. If the unknowing supervisor takes action against the employee, such as changing work duties or schedules, it can potentially trigger a retaliation claim.