There’s no set standard for the amount of time that must pass between a discrimination complaint and an adverse employment action for it to qualify as retaliation. In fact, federal judges hearing retaliation claims have wide discretion in determining whether something may be retaliation based on timing alone.
To be safe, periodically follow up with employees who have complained about bias. Do so for at least a year before closing the case.
Recent case: Patrick McDowell, who is black, reported to his managers that a co-worker had used a racial slur. A little over three months later, McDowell’s hours were cut.
McDowell sued, alleging retaliation for reporting racial harassment and discrimination.
The judge hearing the case noted that it was within his discretion to decide whether three months was too long for something to be retaliation. He concluded that in this case, lacking other evidence of retaliation, too much time had passed. But he also noted that in other cases, an eight-month lag wasn’t enough to cut off liability. (McDowell v. North Shore Long Island Jewish Health System, No. 10-CV-3534, ED NY, 2011)
Final note: The best preventive approach for retaliation lawsuits is to follow up regularly with the complaining employee. After you make a final decision on the original complaint, explain that company policy bars any form of retaliation.
Ask the employee to immediately report any problems. Then, even if the employee doesn’t call or email, check back at regular intervals. Make careful notes showing that all was well or immediately address any reported retaliation.
You should also follow up with supervisors. Ask them to report any further complaints directly and immediately. Warn them against even subtle forms of retaliation, such as excluding him or her from social events.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Sample Policy: Violence and Weapons
- When salaries differ within job classification, be prepared to offer data explaining why
- EEOC lifts controversial ADEA link to retiree benefits
- New risk: Workers can claim retaliation even if there's no adverse job action