Workplace Retaliation Claims: 4 Essential Best Practices for Employers

Workplace retaliation claims are a significant legal risk for employers. Retaliation is the most frequent type of claim filed with the Equal Employment Opportunity Commission. In fact, retaliation claims were included in over half of all charges filed with the EEOC in fiscal year 2021 (56 percent, according to the EEOC’s enforcement and litigation statistics).

Given the prevalence of real or perceived retaliation being reported to the EEOC, it is important to review best practices for avoiding workplace retaliation claims. In the following, we summarize the four best practices identified in the SHRM article, “How to Avoid a Workplace Retaliation Claim,” by Lisa Nagele-Piazza.

1. Recognize What Qualifies as Protected Activity Under Federal, State, and Local Law

There are a variety of laws in place to protect individuals from discrimination based on protected characteristics, such as race, religion, sex, age, and disability status. These laws also protect individuals from facing retaliation for participating in any formal or informal complaint process.

It is important to note that all employees, job applicants, and former employees covered by equal employment opportunity laws receive protections against discrimination and retaliation. This means that these individuals cannot be retaliated against for filing an EEO charge, participating in an EEO investigation, reporting employment-related discrimination or harassment, requesting reasonable accommodation, or refusing to take part in discriminatory practices, among other protected activities.

Stay informed on all anti-discrimination and retaliation laws that apply to your organization. The EEOC’s questions and answers on retaliation are a helpful starting point for understanding which activities are protected and how workplace retaliation claims arise.

2. Train Supervisors on Common Pitfalls

There are many different forms of retaliatory conduct under EEO legislation. Examples of retaliatory conduct include being fired, receiving threats or reprimands, being transferred to less desirable positions or worksites, and receiving poor performance ratings despite adequate performance.

According to the article, there are many reasons why workplace retaliation claims are so common. Supervisors often lack awareness of the full range of protected activities or retaliatory practices identified by EEO legislation. For example, a supervisor may not realize that individuals have the right to file discrimination claims in good faith even if the claim is ultimately unfounded.

Furthermore, retaliation is often an impulsive reaction to accusations of wrongdoing. Although it is natural to take accusations personally, supervisors must act carefully to avoid retaliatory conduct.

Proper training will provide supervisors with the knowledge and tools to make sound decisions if and when an applicant or employee engages in a protected activity.

3. Establish a Process for Handling Complaints

Employers must handle EEO complaints consistently and professionally. A clear, consistent complaint process is one of the most effective ways to reduce workplace retaliation claims.

The article states, “…management and human resource professionals should be trained on how to properly and proactively respond when employees raise concerns about potential EEO violations, such as asking clarifying questions and seeking additional information to ensure they fully understand the employee’s concern.”

The article also recommends that employers assign a designated employee to review proposed employment decisions to ensure that they are legitimate and not based on discriminatory or retaliatory motives.

4. Create and Follow Consistent Practices

Maintaining consistent employment practices is crucial to preventing claims of discrimination and retaliation. Employment policies must apply evenly to all employees in order to avoid the perception that certain individuals are being discriminated against or are facing retaliation for engaging in a protected activity under EEO legislation.

Furthermore, employers must clearly communicate that retaliation will not be tolerated and should provide employees with a mechanism for reporting retaliation. An independent, anonymous ethics and compliance hotline gives employees a way to raise concerns, including concerns about retaliation itself, outside of their direct chain of command.

Finally, anti-discrimination and anti-retaliation policies must be clearly communicated in writing and through training.

Preventing Workplace Retaliation Claims Starts With Policies and Training

In summary, retaliation is the most common type of claim filed with the EEOC for a variety of reasons. Retaliation is a broad term that covers a variety of adverse employment decisions.

Creating sound employment policies and procedures and providing comprehensive training to employees at all levels of your organization are important steps for preventing workplace retaliation claims.

To further avoid issues, learn How to Have Difficult Conversations with Employees.

Want to give your employees a safe, anonymous way to report retaliation and other misconduct? Contact us today to learn how Red Flag Reporting’s anonymous ethics and compliance hotline can support your efforts to prevent workplace retaliation claims.

Frequently Asked Questions About Workplace Retaliation Claims

What is a workplace retaliation claim?

A workplace retaliation claim arises when an employer takes a materially adverse action against an applicant, employee, or former employee because that person engaged in protected activity, such as filing an EEO charge, participating in an investigation, or opposing discrimination. Under EEOC guidance, an action is materially adverse if it might deter a reasonable person from engaging in protected activity.

Why are workplace retaliation claims so common?

Retaliation is the most frequently alleged basis in charges filed with the EEOC. In fiscal year 2021, 56 percent of all charges included a retaliation allegation. One reason is that a retaliation claim can succeed even when the underlying discrimination complaint does not, because employees are protected for raising concerns in good faith even if those concerns turn out to be unfounded.

Can an employer discipline an employee who has filed a complaint?

Yes. Engaging in protected activity does not shield an employee from legitimate discipline for performance or conduct problems. However, the employer should be able to show that the decision was based on legitimate, non-retaliatory reasons and that its policies were applied consistently. The EEOC notes that independently reviewing a manager’s recommended adverse action can reduce the risk of retaliation. Employers facing these situations should consult employment counsel.

What should a supervisor do when an employee raises a concern?

A supervisor should stay calm, listen carefully, ask clarifying questions, and avoid taking the concern personally. The concern should be routed through the organization’s established complaint process, and any changes to the employee’s duties, schedule, or evaluation should be reviewed by HR before they are made.

How can an anonymous hotline help prevent workplace retaliation claims?

An anonymous hotline gives employees a confidential way to raise concerns outside of their direct chain of command, including concerns about retaliation itself. Reports are delivered to the organization’s designated contacts, who decide how to investigate and respond. Learning about problems early gives employers the opportunity to address them before they become formal workplace retaliation claims.