Some Useful Tips For Avoiding And Addressing Employment Retaliation Claims

Retaliation is one of the most commonly alleged employment-related claims, often asserted in conjunction with other discrimination claims, and can be more challenging to address and defend than the underlying discrimination claim. Generally, retaliation is when an employer takes an adverse employment action (e.g., a demotion, suspension, or termination) against an employee because  the employee engaged in what is considered protected activity. Protected activity includes, for example, a good faith complaint of discrimination or harassment, participating in an investigation, testifying in a proceeding, requesting an accommodation, filing a union grievance, reporting a work-related injury, or filing a worker's compensation claim. Retaliation claims, however, need not be based on such concrete actions (such as a termination) but can be premised on any action that would dissuade a reasonable person engaging in protected activity, such as transferring an employee to a less desirable job, shift, or department, or giving them the “silent treatment.”

Retaliation is expressly prohibited by various federal (and comparable state) laws (e.g., Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), Americans With Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), the National Labor Relations Act (NLRA), Occupational Safety and Health Act (OSHA) and Sarbanes-Oxley (SOX)). Notably, employees are protected from retaliation even if their underlying claim is unsubstantiated or otherwise fails. Retaliation claims can also be challenging because some courts may consider the timing alone of an adverse employment action, when in close proximity to protected activity, as evidence of retaliation.

Although retaliation claims can be challenging, there are some general best practices employers should consider to help avoid such claims and/or mitigate risks:

• No-Retaliation Policy Publication. No-retaliation policies should be broadly and regularly communicated to employes. Managers and supervisors should be trained on the policy, including what is protected activity, what is retaliation, what is prohibited, consequences for violating, etc.
• Prompt and Thorough Investigations. An employee's underlying complaint should be promptly and thoroughly investigated, emphasizing the no-retaliation policy, which helps inform decision-making and demonstrates the company takes complaints seriously and prohibits retaliation.
• Follow-Up.  Periodically follow-up on the complainant to ensure no retaliation is taking place.
• Require Consistency in Treatment. Is the employee being treated consistently with how others (who have not engaged in protected activity) have been treated under similar circumstances and consistent with how they were treated before engaging in protected activity? This helps demonstrate non-retaliatory motives for any employment actions deemed warranted.
• Documentation. Is there contemporaneous documentation supporting the reasons for any adverse employment action (versus documentation created only after an employee engaged in protected activity)? 
• Confidentiality/Limit Knowledge. Knowledge of an employee's protected activity should be kept on a need-to-know basis. If a decision-maker for an adverse employment action, for example, did not have knowledge of the protected activity (and was not otherwise influenced by others who did), then the protected activity could not have motivated the adverse employment action.
• Make Whole Remedy. Consider promptly remedying any substantiated retaliatory action to make the employee whole (e.g., reinstatement, remove discipline, etc.)

The above is only a general overview of some of the issues and challenges posed when addressing retaliation claims, as individual situations and approaches can vary significantly. If you have questions regarding managing a retaliation claim, feel free to reach out to your Foley & Lardner LLP labor and employment attorney.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.