"Why I Oughta …" Leave Retaliation to the Stooges and Avoid Liability

Retaliation was a linchpin of the slap stick comedy of The Three Stooges. A retaliatory poke in the eye, a tit-for-tat clout to the top of the head, or a responsive jab to the gut — all animated by some well-coordinated but silly sound effect.

But the issue of retaliation in the workplace is strictly serious business. And the related challenges for employers continue to grow. Claims of retaliation are steadily increasing, exposing employers to ever more potential liabilities and requiring more and more employer resources to defend against such mounting claims. In its fiscal year-end charge data published this past February, the EEOC reported that retaliation is the most common claim asserted in charges filed with the EEOC in its FY’13 report. Some 38,500 charges filed with the EEOC last year alleged retaliation, representing over 41% of all charges filed. Moreover, this proliferation of retaliation claims is not new — the number of EEOC charges  alleging retaliation has increased in each of the last eight years.

Two general reasons explain this trend. First, because managers are human, they often react badly to an employee who makes some type of discrimination allegation or other claim that they were treated wrongfully by the manager. This can be especially true, and almost instinctive, if the employee’s underlying claim is exaggerated or even baseless. But it is typically “protected activity” nonetheless. The frustrated manager must understand that he or she cannot punish the employee for making the claim, even if the claim is factually incorrect or even foolish. Employers must try to manage instinctive retaliatory behaviors with clear policies and good training of managers.

The second reason that retaliation claims are on the rise is that court decisions in recent years have expanded employees’ rights in this area. For example, they have expanded the notion of what constitutes protected activity, from the filing of employment-law related claims with agencies or courts, to the making of internal complaints at the employer, even if not in writing. Court decisions have also stretched anti-retaliation protections to more persons. Now, in addition to protecting an employee who raised a complaint of discrimination (or other wrongdoing like failure to pay overtime or properly safety guard a machine), the law protects others from retaliation. This includes those employees who are questioned by the employer in its investigation of a claim, other employees who speak up in support of the complaint, and the newest, still ill-defined group – those co-workers of a complaining person who are in the “zone of interest”. And perhaps most importantly, the court decisions have drastically expanded the various behaviors that might constitute retaliation. Anti-retaliation laws  now cover so much more than terminations and disciplinary action, making the employer liable for any actions that might have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” This can include even passive aggressive behaviors by the manager who is acting out of aggravation at an employee’s assertion of a claim.

Many employers have not fully educated their managers on the scope of the anti-retaliation rights or trained them how to avoid stepping into a retaliation claim by lashing out in some active or passively aggressive way against an employee who complains. Most every employer has some Mo, Larry or Curly supervisor who is prone to “punch back,” and these managers must be trained on the “Do’s and Don’ts” guidelines of dealing with an employee who has raised a claim, such as:

Do:

• Mainly behave as if the complaint had not been made; business as usual is a good way to avoid a follow-up retaliation claim.
• Document very well the basis for any adverse actions that need to be taken against the complaining employee, such as any discipline or pay reduction.
• Double check yourself on any decisions that will disappoint or anger the complaining employee, maybe with some review by peers or your own manager, to ensure these decisions are objectively fair and well supported.

Don’t:

• Take an adverse action against an employee as a form of backlash for complaining.
• Mock, ridicule or demean an employee in front of others for raising a complaint.
• Cut the complaining employee out of the normal communication flow if this might impede his ability to do his job.
• Subject the complaining employee to greater scrutiny than his peers.
• Do anything that else that could make co-workers reluctant to assert a claim for fear of getting treated the same way.