When it comes to employee disputes, claims such as discrimination and sexual harassment often come to mind. But in reality, retaliation is one of the biggest complaints filed against employers. According to the Equal Employment Opportunity Commission (EEOC), 43% of the claims filed in 2014 were based upon retaliation. But what, exactly, does retaliation look like?
Take this example: employee 1 files a complaint against employee 2. You conduct an investigation but cannot find any information or evidence to support the allegations. You decide to reassign employee 1 so she no longer has to work with employee 2. But the reassignment is not beneficial to employee 1, and she accuses you of seeking retaliation due to her complaint. Your actions may have been justified in your mind, and you may have thought that you were acting in the interest of both employees. How can you know whether the actions you take could be considered retaliatory?
The Supreme Court, in Burlington Northern & Santa Fe Railway v. White, defined what must be shown in order for a plaintiff to succeed on a retaliation claim, stating that the plaintiff must show “that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” What this means is that if your actions could be seen by a reasonable employee as an attempt to dissuade them from exercising his or her rights, then you could be in trouble. Note that it is not the employer’s intent which is the primary concern - it is the impact, or perception, of the action taken.
To protect yourself from retaliation claims, adequate documentation is key. This means recording any and all instances of employee misconduct, so that if you are forced to discipline or terminate an employee for any reason you can show that it was not done out of retaliation, but instead was warranted by the employee’s behavior. As always, adequately investigate any and all employee complaints, and consult with an employment attorney when potential retaliation issues arise.