Retaliation in the workplace may be defined as a form of unlawful discrimination that occurs when an employer, employment agency or labor organization takes an adverse action against an employee or other covered individual because he or she engaged in a protected activity, including filing a charge of discrimination with a fair employment practices agency or participating in an investigation of alleged workplace misconduct. The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age and disability and that prohibit wage differences between men and women performing substantially equal work also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding. All laws enforced by the Equal Employment Opportunity Commission (EEOC) prohibit retaliation in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits and any other term or condition of employment. See, EEOC: Facts About Retaliation. Other types of employment laws also prohibit retaliation. Wage and hour laws, family and medical leave laws, labor laws, armed service members and veterans’ rights laws, and workplace safety laws all prohibit retaliation against individuals who exercise their rights under these federal statutes. Many state laws, such as workers’ compensation and state labor and wage payment laws, contain specific anti-retaliation provisions. Whistle-blower laws are another form of anti-retaliation protection for individuals who report concerns about employer actions that they believe are illegal, unsafe or against public policy. Whistle-blowing is generally defined as reporting an employer’s illegal acts either to an employer’s internal complaint mechanism or to a governmental agency with oversight responsibility. A variety of federal and state statutes prohibit employers from retaliating against employees for whistle-blowing under specified circumstances.

Retaliation claims have become the most frequent and potentially costliest workplace disputes. Retaliation claims lodged with the EEOC have increased steadily, surpassing all other types of discrimination claims filed with the agency. In fiscal year 2011, the EEOC reported that charges of retaliation under all statutes it enforces topped all other categories and comprised more than 37 percent of the nearly 10,000 charges it received. In the last 15 years, the percentage of retaliation charges compared to all other charges filed with the EEOC has increased each year, and in fiscal year 2010, retaliation exceeded race discrimination as the most commonly cited violation.

Human resource professionals represent the employer’s first line of defense against charges and complaints of retaliation. Preparing for such cases before a retaliation charge or lawsuit is filed enables HR to play a significant role in preventing and reducing retaliation claims. Successful retaliation claims often arise after an employer takes an “adverse employment action” against an individual who has exercised his or her rights under an anti-discrimination or other workplace law. This situation may occur inadvertently if management is unaware of the special status such individuals assume. The original claim does not have to be successful, as long as it was made in good faith. HR’s careful planning and due diligence can help identify these individuals and prevent personnel actions that may be considered retaliatory.

Similar to employees who file charges or lodge complaints, employees who are interviewed as part of an internal investigation must be treated cautiously. Participating in the investigation may protect that employee, and HR should alert supervisors and managers to the retaliation claim risk.In addition to employee witnesses, HR staff members who provide information to management about others’ unlawful behavior during an investigation are protected against reprisal. Protecting all workers against retaliation makes it easier for managers to root out bad behavior.

Even before the recent federal protections for whistle-blowers under the Dodd-Frank (PDF) and Sarbanes-Oxley laws, retaliation complaints often caught employers off guard. Managers often do not understand the underlying risk of retaliation claims, and employers often compartmentalize retaliation claims by referring them to the compliance or legal department without seeking HR’s input.

HR professionals can incorporate basic measures into best practices to help employers prevent or reduce the likelihood of a retaliation charge or lawsuit. To prevent retaliation, employers should take the following steps: Adopt and disseminate a strong anti-retaliation policy. While this policy can be contained in your organization’s anti-discrimination and anti-harassment policies, a separate anti-retaliation policy may be more effective. It should make clear that your organization will not tolerate retaliatory conduct based on an employee’s opposition to job discrimination or harassment or participation in discrimination complaint proceedings. Inform employees about the process for reporting alleged retaliation. Your organization’s anti-retaliation policy should state to whom employees report retaliation. For example, you might instruct employees to go to anyone in their chain of command or your organization’s HR office. Train managers on retaliation. Individuals accused of discrimination may unconsciously lash out at the accuser or witnesses. Managers should be trained on acceptable and unacceptable responses to protected activity under the anti-discrimination laws. Remind supervisors who are accused of discrimination of the organization’s policy prohibiting retaliation against the complainant or witnesses. Inform supervisors that they will be subjected to disciplinary action if they retaliate against individuals who complain of discrimination or who provide information related to a discrimination complaint. Monitor the treatment of employees who complain of discrimination or who provide information related to discrimination complaints to ensure that they are not subjected to retaliation. Carefully scrutinize any proposed adverse action against a discrimination complainant or witness to ensure that it is based on a legitimate and not retaliatory reason. Investigate allegations of retaliation and take prompt corrective action when retaliation occurs. Retaliation should be stopped even if it is not significant enough to violate federal law to prevent it from escalating to that level.

By: Hanna Yurkovetskaya