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Retaliation: The legal risk of ‘getting back’ at employees

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in Discrimination and Harassment,Employment Law,Firing,Human Resources,Leaders & Managers,Management Training

Most managers know that it’s against the law to discriminate against employees and applicants because of their race, gender, age, religion or disability.

But they may not know that those same federal laws also make it illegal for employers and supervisors to retaliate in any way against employees who voice complaints about on-the-job discrimination.

The government agency that enforces workplace anti-discrimination laws, the U.S. Equal Employment Opportunity Commission (EEOC), says:

“An employer may not fire, demote, harass or otherwise ‘retaliate’ against an individual for filing a charge of discrimination, participating in a discrimination proceeding or otherwise opposing discrimination.”

In 2009, the number of retaliation complaints to the EEOC skyrocketed to more than 33,000. That’s a 25% increase in just two years. And retaliation complaints are tied with race discrimination claims as the most common EEOC complaint—36% of the cases the EEOC handles allege retaliation.

One reason for the spike in complaints: In 2006, the Supreme Court rewrote the definition of “retaliation” in its landmark Burlington Northern & Santa Fe Railway Company v. White decision, making it easier for employees to get their retaliation lawsuits into court. Since then, savvy attorneys have been looking for retaliation claims whenever they hear about any kind of workplace discrimination.

Case in point

Here’s a recent example of how retaliation can quickly happen. A manufacturing company experienced a downturn, so it had to cut the hours of some of its employees. One of those employees filed an age discrimination complaint with the EEOC. When his supervisor found out about the complaint, he immediately fired the complaining employee. The employee tacked a retaliation complaint onto his original age discrimination claim.

The result: There was no proof of age discrimination, so the employee lost that part of the case. But he was easily able to prove that his firing was retaliation for the age-bias complaint. Employees can win their retaliation cases even if they lose on the underlying discrimination claim.

The lesson: Hands off complainers! It’s more important than ever for supervisors to treat all employees equally in day-to-day management and discipline. They should never try to “get back at” employees who complain about discrimination, safety or financial violations.

That doesn’t mean that employees who voice complaints are untouchable. You can still discipline such employees for legitimate performance and behavior issues. Just make sure you’ve taken the same actions with all employees. And document the reasons for your decisions.

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