Most managers are skilled at preventing discrimination claims. But few pay close enough attention to the financial damage that retaliation, resulting from a discrimination claim, can have on a practice.
The reality is that retaliation claims have a higher rate of success than discrimination claims.
Retaliation claims not limited to victims
Retaliation is any adverse action that takes place after an employee has filed a discrimination claim against their employer. It can be filed even if a complaint is found to be baseless. And it’s not just the alleged victim who can claim retaliation. Witnesses who believe they are being retaliated against for speaking out can also sue.
Some retaliatory surprises
The list of what can give rise to a claim is varied and carries some surprises. Here are just a few examples:
- An employee is fired, passed over for promotion, or refused a raise, regardless of whether the initial claim was valid or not. To avoid this, it is essential a manager have solid proof that all performance related decisions are job-related rather than personal.
- Job evaluations that were consistently positive before the discrimination claim are now negative.
- A manager’s attitude toward the complainant changes. Perhaps he or she speaks ill of the employee or writes negative e-mails that will remain online forever.
- The employee is excluded from office functions or no longer receives lunch invitations that were commonplace before the incident.
- An employee is subject to comments that make them feel unwelcome. They may be told their claim is unforgiveable or that they no longer belong at the company.
- Changes to an employee’s schedule are seen as making the job more difficult, especially if they create childcare issues for the complainant.
- They are put on paid leave without prior consultation. Although most companies have good intentions when putting an employee on paid leave, an employee may view this as punishment. What’s more, the Equal Employment Opportunity Commission (EEOC) prohibits employers from changing the terms and conditions of the job without the employee’s consent.
Protect yourself with an anti-everything policy
When drafting a retaliation policy, clearly state that the company will not tolerate retaliation towards staff who complain about harassment or discrimination, or towards anyone who provides information in connection with a complaint. Make it clear that employees who experience harassment, discrimination, or retaliation are encouraged to report it.
To make the policy even stronger, state that employees are required to cooperate with any, and all, investigations of harassment, discrimination, or retaliation.
Explain the policy to new hires and provide training regularly. Some states require training as often as once a year, although it can be informal and as little as a 10-minute staff meeting where staff are reminded about the policy and given examples.
It is also important to document all training and have staff sign a statement confirming they have received the training.
Related reading:
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