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The what, whom and how to preventing workplace retaliation

Workplace retaliation lawsuits are increasing and can be an expensive lesson for a company to learn.  When an employee files a complaint about discrimination or harassment in the workplace and afterward feel as though they were punished for blowing the whistle – it can be viewed as retaliation and can result in your business facing a costly lawsuit.

Anytime an employee has a concern; it is imperative that you, as an employer, take it seriously and handle the complaint with special care.  Understanding the rules around workplace retaliation is critical for the owner, HR, managers, and anyone who has a position of influence in your business. You are legally obligated to officially and thoroughly investigate the charges.

To help you learn more about retaliation in the workplace, I will discuss what it is, whom it affects, and how to prevent it. 

What is Retaliation

Retaliation is any adverse action that a company takes against an employee (or any employees interviewed during an investigation) because he or she filed a complaint about harassment or discrimination.   Any results, such as reassigning them, reducing their pay, discipline, demoting, firing, or negative evaluations, can be viewed as retaliation.

For example, suppose an employee complains to you that a supervisor regularly makes derogatory and sexist comments. You think that moving the employee to a different office while the claim is investigated is a helpful idea. However; the reassignment could be seen as retaliation because the person who had the grievance got moved, not the supervisor who is doing the harassing. If you want to remedy the situation, then you need to focus on the wrongdoer, not the employee.

Protect your employees

The equal employment opportunity laws prohibit punishing employees for asserting their rights to be free from discrimination and harassment while at work. This is to preserve and protect their rights and to encourage employees to feel safe to come forward and report injustice. Employees who were interviewed during the investigation – who may have witnessed the behavior or incident are also protected against retaliation.

No matter if the original complaint turns out to be a misperception or even fabricated, you are still required by law to investigate the situation thoroughly and reasonably without any judgment, assumptions, or retaliation. 

Retaliation can be difficult to witness and document, and it’s important to regularly check-in with any employee who has filed a complaint, or participated in an investigation, to make sure they are feeling supported and protected. 

Preventing Retaliation

Preventing claims of retaliation in the workplace means taking a proactive approach to setting policies and training supervisors and managers about what to be aware of.  Each situation will be different and needs to be addressed on its own merit versus a one size fits all policy.

  • Create a policy: If you don’t already have a policy against retaliation in your employee handbook then create one that specifies what retaliation is, how to report it, and the potential consequences.   
  • Train managers: You need to train your managers about what retaliation is, what it looks like, and how to address it.  All complaints must be taken to HR for investigation; however, if you don’t have an HR department, then it is imperative that you train your management team about retaliation.
  • Take complaints seriously: Take all complaints seriously and perform a thorough investigation. Remember to focus on the wrongdoer, not the employee who complained.
  • Keep complaints confidential: Make it clear to all employees that any complaints they file will be kept confidential and will not in any way affect their career opportunities.  Assure them that their information will only be shared with members of the organization to assist in investigating the matter.   
  • Document: Have a process in place that records and documents everything, from the initial complaint, step by step of the investigation and all the way through to the conclusion. It is imperative that you document the process for any future legal proceedings.   

In conclusion, It is always illegal to retaliate against an employee for speaking up about sexual harassment, racial discrimination, and inappropriate workplace activities. Claims of workplace retaliation can be complicated, destructive, and expensive. Training your management team on how to prevent retaliation and having proper policies and procedures in place can help save your company’s reputation and bank account. 

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