Don’t Fight Back! Avoiding Retaliation Claims

Retaliation claims go with discrimination charges like ______ ? goes with _______ ?

Well, I’m not too sharp with the analogies this morning. But the point is that a retaliation claim is a frequent accompaniment to a discrimination claim, sometimes being the stronger, sometimes the weaker, of the claims.

Retaliation prevention must be given as much attention as discrimination and harassment prevention.

Three key points about retaliation:

1) Timing is extremely important: adverse action (e.g. termination) taken shortly after learning of an employee’s protected conduct (e.g. complaining about discrimination) will look retaliatory. Conversely, if a substantial period of time has passed between the protected conduct and the adverse action, the retaliation claim will look far-fetched.

2) An employee who complains about discrimination does not have to have a valid discrimination claim in order to potentially have a valid retaliation claim: a reasonable good-faith belief in the validity of the complaint is sufficient.

3) Not every adverse action experienced by the employee following protected conduct is sufficiently serious to establish a retaliation claim. For example, being frowned at in the hallway, without more, is insufficient. Courts are in some disagreement, however, about exactly where to draw the line on conduct that falls short of obvious material changes in terms and conditions of employment (e.g. termination, demotion, pay cut).

A recent article in the East Bay Business Times points out that “Lack of communication is almost always the culprit in alleged retaliation claims.”

The article provides suggestions for improving communication and reducing the risk of retaliation claims, including:

  • Advise complaining employees of the company’s anti-retaliation policy.
  • Follow up with complaining employees and witnesses (who are also protected against retaliation) to ensure no retaliation has occurred. Document follow-up discussions.
  • “Don’t assume you have covered yourself by conducting one follow-up with the employee. . . . Put notes in your calendar to remind yourself to check in with the employee periodically for approximately two to three months after the complaint is lodged.”
  • “The employer that initiates adverse action against an employee too soon after the employee has lodged a complaint treads on thin legal ice.”

“Protect your firm from retaliation claims by conducting reality checks,” by Nikki Hall (East Bay Business Times)

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