Published in NH Business Review
Susan, the HR Director of Smith Corp., has just received a complaint of gender discrimination from Joann.; Susan has heard that retaliation complaints often accompany such complaints, and is concerned about preventing a retaliation claim. What can Susan do to prevent a retaliation claim against Smith Corp.?
In 2011, retaliation was the number one claim raised at the EEOC for the second year in a row, so employers should be concerned about taking proactive steps to minimize their risk of these claims. The reasons for the expansion of retaliation claims include that they are typically easier to prove than the underlying claim, retaliation claims can be successful even if the underlying claim is not proven, more employees have standing to bring these claims, and managers often do not fully understand retaliation.&
Retaliation occurs when an employee engages in protected activity, subsequently experiences an adverse employment action, and there is a direct relationship between the two. Often timing is the most critical factor in determining if retaliation did in fact occur. For example, if an employee raises concerns to a supervisor that workplace conditions are unsafe or unlawful and that employee is demoted within a short period of time, it will be very difficult for an employer to defend against a claim of retaliation due to the timing of the complaint and subsequent demotion.
Given the above definition of retaliation, it is critical for employers, as well as their managers, to understand what constitutes a “protected activity” as well as an “adverse employment action.” Some instances of protected activity are clearly apparent to employers, including activities enforcing an employee’s rights such as opposing unlawful conduct or making a complaint. However, protection from retaliation claims extends to individuals who participate in internal investigations, even if they did not raise the complaint. Employers should also know that oral complaints are sufficient to constitute protected activity.
The term “adverse employment action” has been defined very broadly by the United States Supreme Court to mean any conduct that could dissuade an employee from making or supporting a claim. Again, the term includes clearly apparent adverse actions, including termination and/or demotion, but can also encompass a wide variety of less obvious actions and behavior. Examples include being ostracized from meetings and being treated differently by other employees and supervisors.
Retaliation can also occur with employees who are the individual who engaged in protected activity. The United States Supreme Court has found that an employee who was terminated due to his fiancée’s protected activity may raise a retaliation complaint because employer may not retaliate against a third party employee if they are in the “zone of interest” of the employee who engaged in the protected activity. Employers must be careful when taking an adverse employment action against an employee to be sure that a family member, or possibly even close friend, has not recently engaged in protected activity.
Given this information, what can employers do to protect themselves from retaliation claims when responding to protected activity? First, employers should have a stand alone retaliation policy in their employee handbook to provide employees with the information they need to understand retaliation and to show that the company is serious about preventing it. All employees should undergo training explaining retaliation and the company’s policy, and managers and supervisors should undergo additional training so they fully understand what actions constitute retaliation. Often even the best intentioned actions to separate complainants and alleged harassers can give rise to a retaliation claim, and managers must understand that. Once an employer begins an investigation, all complainants and witnesses should be told explicitly that they cannot be retaliated against and given the opportunity to come to HR or other appropriate personnel with any concerns about retaliation. Finally, HR or the individual conducting an investigation should follow up with the complainant to make sure he or she is not experiencing harassment. While these actions are not all-encompassing, these steps alone will go a long way in protecting an employer from a retaliation claim. Employers need to take affirmative steps to protect themselves and their employees, which may include seeking the assistance of an outside attorney and/or HR consultant to assist them with these steps.
Katie Kiernan Marble is an attorney in the Litigation Department at the law firm of McLane, Graf, Raulerson & Middleton, Professional Association. Katie can be reached at 603-628-1490 or at firstname.lastname@example.org. The McLane Law Firm is the largest full-service law firm in the state of New Hampshire, with offices in Concord, Manchester and Portsmouth, as well as Woburn, Massachusetts.