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New retaliation rules: What managers need to know

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

Managers in every U.S. organization got a wake-up call from the U.S. Supreme Court this summer about the legal risk of retaliating against employees who voice complaints about discrimination or other on-the-job wrongdoing.

In a landmark ruling, the Supreme Court established a broad national definition of what management actions would be considered illegal "retaliation" under federal anti-discrimination law. (Burlington Northern v. White)

Essentially, the ruling makes it easier for employees to file and win retaliation lawsuits. Legal experts are predicting that employees will file "a flood" of retaliation claims in the coming years to test the high court's new standard.

What it means to management: It's more important than ever to treat all employees equally in day-to-day management and discipline. Never try to "get back at" those who file in-house complaints or lawsuits about discrimination, safety or ethics violations.

Be ultra-cautious about the timing of discipline and employment decisions so that that those actions don't even appear to be retaliation for an employee's earlier complaint.

That doesn't mean employees who voice complaints are untouchable. You can still discipline such employees for legitimate performance and behavior problems. Just make sure you'd take the same action with any employee, and document the reasons for your decision.

Before disciplining, ask yourself, "Why am I taking this action now?" If the timing smells of retaliation, a jury may think so, too. Also, ask yourself, "Would I take this action with my best employee?" If not, you could be vulnerable to a retaliation charge.

Final note: Retaliation lawsuits already are on the rise, doubling in the past dozen years. Employees can actually win retaliation claims even if their underlying discrimination lawsuit falls flat.

For example, say an employee sues for sexual harassment but has absolutely no proof and would quickly lose in court. If that employee can prove that her manager retaliated against her for filing the lawsuit—say, by firing her, cutting her pay or transferring her to a more difficult job—then she might win a retaliation lawsuit even if the underlying harassment suit was frivolous.  

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