Preventing and defending employee retaliation claims

The United States Equal Employment Opportunity Commission (EEOC) recently released detailed data regarding charges filed in 2018. Once again, retaliation was the most commonly filed charge with the EEOC, accounting for 51.9 percent (or a total of 39,469) of charges filed.  

For various reasons, retaliation claims are some of the most complicated for employers to prevent and defend. 

In order to establish unlawful retaliation, an employee must demonstrate that he/she engaged in a protected activity, his or her employer took an adverse action against him/her, and a causal connection exists between the protected activity and the adverse action. The second element—whether an employer took an adverse employment action against the employee—is typically the easiest to establish and/or defend because it requires a showing that the employee sustained a materially adverse change in the terms and/or conditions of his or her employment (i.e., termination, demotion, loss of pay/benefits). 

Whether the employee engaged in protected activity, and if so, whether it was causally connected to a subsequent adverse employment action, however, typically requires a more detailed analysis. Accordingly, employers should be cognizant of what constitutes protected activity and their obligations after an employee engages in protected activity by asking themselves the following questions: 

Did the employee participate in an activity protected by statute or oppose an unlawful practice prohibited by statute?  

Examples of protected activity include, but are not limited to:

• Using federal or state family leave
• Making a complaint of misconduct
• Discrimination or harassment
• Making a safety and/or wage and hour complaint
• Providing testimony in an internal or external investigation 

Protected activity can also include other acts opposing discrimination so long as the employee is acting with a reasonable belief that something in the workplace is unlawful. 

Did we respond in accordance with our policies and procedures? 

It is important for employers to have policies and procedures in place that outline how the employer will respond to employee complaints and for employers to act in accordance with those policies and procedures. 

In addition to timely meeting with the employee and conducting a thorough investigation, employers should ensure that they are preserving all evidence related to the employee’s complaint and employment (i.e., emails, personnel files). Employers should also meet with the employee at the conclusion of the investigation to close the loop if the policy so provides as well as document steps of the investigation and meetings.

Do we have an anti-retaliation policy and, if so, have we ensured compliance with the policy? 

It is critical that employers not only have a policy that strictly prohibits retaliation against any employee who engages in protected activity but that management and supervisors are well-versed in and abide by the policy. Training and reinforcement of consequences for those that violate the policy are essential. 

A non-retaliation policy should also include information for employees on how to report instances in which they feel they are subject to retaliation. The policy should provide alternate avenues of reporting, particularly in instances where the employee believes his or her direct supervisor is the perpetrator of the retaliation. 

The attorneys at McDonald Hopkins are well versed in drafting policies and procedures and defending claims of retaliation. Feel free to contact a McDonald Hopkins attorney if you have any questions.