10 Strategies for Avoiding Retaliation Claims


Allegations of unlawful workplace retaliation have steadily risen over the last decade and now represent the most common type of discrimination claim filed with the Equal Employment Opportunity Commission (EEOC) —topping even race- and gender-discrimination claims. This surge in retaliation claims is due partly to court decisions that have broadened protections against retaliation. Workers have also had a great deal of success with these claims, as they often survive even when underlying claims of discrimination are dismissed.

Employers can minimize the chances that an employee will file a retaliation claim by implementing the following strategies:

  1. Develop and maintain an effective no-retaliation policy. Establish a clear, written prohibition of retaliation within anti-discrimination and harassment policies and corporate compliance programs.
  2. Train employees. Train all employees to recognize what retaliation is and the procedures for reporting complaints. In particular, supervisors and managers should know how to avoid retaliation and appropriately respond to complaints.
  3. Effectively manage investigations. Complaints of discrimination should be taken seriously with a prompt and thorough investigation.
  4. Apply policies consistently. Selective enforcement of policies can support discrimination and retaliation claims.
  5. Address and document performance issues. Evaluate employee performance on a regular basis and document any performance problems immediately. If needed, this documentation will provide evidence of a legitimate, non-retaliatory reason for an adverse employment action.
  6. Review discipline and termination decisions before taking action. Prior to taking adverse action, ensure that the reasons for the action are documented, that evidence exists to support those reasons and that nothing in the employee’s employment record contradicts that evidence. Particular care should be taken if an employee recently engaged in protected activities — such as filing a complaint of discrimination or complaining about employment practices — to make certain there is no causal connection between the employee's activity and the adverse action.
  7. Give employees the real reason for the adverse action. Be honest with employees about the reason for disciplinary action or discharge to avoid misunderstandings that could lead to retaliation claims. For example, if an employee is told he is being discharged because of job elimination — but is actually fired for poor job performance — and the position is re-filled shortly thereafter, the employee may construe the stated reason as a pretext for unlawful termination.
  8. Remove accused employees from decision making. If an employee has complained about a supervisor, it may be prudent to remove the accused supervisor from his or her role in making employment decisions about that employee to avoid any retaliatory inference.
  9. Reconsider and fix bad decisions. An objective review of the adverse action may shed light on previously unnoticed retaliation. A prompt rescission of a prior employment action may protect an employer from liability.
  10. Consider a severance package as a last resort. When a bad situation in unavoidable, an employer can consult with legal counsel about offering a severance package conditioned upon the employee signing a release of all employment-related claims.

Managers and supervisors can prevent retaliation claims by understanding of what constitutes unlawful retaliation and how to avoid it while carrying out their managerial responsibilities. WeComply’s online course on Avoiding Retaliation covers practices and strategies employers can use to avoid retaliating against employees who exercise their legal rights in the workplace.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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