6 Steps for Avoiding Retaliation Claims

DATE: November 30th, 2018

Retaliation claims by employees are low hanging fruit, but the frequency of claims can easily be reduced by the employer, if the employer (ideally a trusted and neutral HR Department) do the following:

1.Have a written policy.  As the backbone for your anti-retaliation program, initiate a clear policy prohibiting retaliation.

2.Provide training. Just having the policy isn’t enough. Provide training to supervisors and managers about what retaliation consists of and how to avoid it. (Basically, retaliation is any action that would dissuade a reasonable worker from engaging in protected activity).

3.Don’t fire employees when you’re fired up. Managers and supervisors need to understand that anger should not dictate employment decisions. Managers should do whatever it takes to cool down and stay cool. Part of their job is to act responsibly and professionally, even in the face of false accusations.

4.Clarify protocols for supervisors. Provide training and refreshers so supervisors know how to react when they receive a complaint from an employee. A supervisor typically is the first person to receive harassment complaints from employees and his or her response is critical in resolving and defending workplace discrimination claims.

5.Apply policies and practices consistently. Selective enforcement of policies can support a claim of discrimination and retaliation, especially if enforcement is stepped up right after an employee files a complaint. If an employer departs from its usual policy or practice, the legitimate, nondiscriminatory reasons for the exception should be documented.

6.Publish your complaint reporting procedures. Post them conspicuously and encourage employees to report any retaliation using the same complaint procedure

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