The Retaliation Dilemma

The presence of complainants can create tension, but attorneys say organizations can avoid retaliation lawsuits by taking steps to ease that tension. That starts with keeping them in the loop during the investigation of their complaints and ensuring they know about anti-retaliation policies.

“That doesn’t mean you have to tell them every little thing that’s happening in the investigation, but do let them know you are talking to witnesses, the status of the investigation, and when you will get back to them next,” Boisvert says. “You can keep some of these claims from going to court by following the basics of good communication and problem solving.”

And companies shouldn’t rely only on complainants to let them know when there’s a problem. “Just the act of failing to monitor the situation after someone has made a complaint, even if the claimant doesn’t come forward and say ‘Joe Manager is shunning me,’ can be viewed in some circles as an affirmative retaliatory act,” Nolan says.

Employers might also consider changing the work environment so the complainant can change schedules or report to another supervisor if it could ease the inherent tension. In these cases, it’s critical that the complaining employee first sign off on the changes, so agreement is documented.

Although avoiding retaliation claims in the new legal landscape will prove challenging, demonstrating caution, restraint, and sensitivity with complaining employees will go a long way toward heading off lawsuits and protecting your organization from exposure to costly punitive damages.