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10 things you never want to have to admit in a retaliation case

by on
in Discrimination and Harassment,Human Resources

When an employee either complains internally about discrimination or goes to an outside agency like the EEOC to lodge a complaint, she has engaged in what’s called “protected activity.” She may not be right about the discrimination, but if her employer retaliated against her for complaining in the first place, she could win a large jury award anyway.

That’s why it’s so important to prevent retaliation. It’s a legal minefield if you do get sued.

You’ll want to avoid at all costs having to admit to any of these 10 things if you’re embroiled in a retaliation case.

1. No, we don’t have a separate policy against retaliation. This is a deadly admission. It’s akin to saying you never thought through what might happen to an employee who came forward to report wrongdoing—or even considered that those affected by a complaint might get angry and lash out at the accuser.

2. No, we haven’t trained supervisors about our retaliation. What will a jury think when it hears this admission? Probably that you don’t take complaints seriously and don’t really care whether a supervisor punishes a subordinate who dares to speak out.

3. No, I didn’t know our supervisors give references about former employees. If you don’t require all inquiries to come through HR, you are playing a dangerous game. Consider the example of a terminated employee who filed a discrimination suit: She tries to get another job and a hiring manager calls for information. If the call comes to HR, you can provide basic information—confirming employment dates and no more. But if the supervisor provides a scathing reference, that may be retaliation.

4. I knew about the retaliation claim, but I didn’t tell the accused—or anyone else. Maybe you thought you could avoid future problems by keeping it confidential. That’s a serious mistake. Not only won’t this fly with a jury, but keeping silent likely will simply encourage more supervisory retaliation, strengthening the employee’s legal case. Instead of ignoring the problem, discuss it openly. Then reverse any adverse action the supervisor took that wasn’t clearly justified and supported by strong documentation.

5. Yes, it’s true that she wasn’t disciplined until after she complained. But we really should have disciplined her before then. We were trying to work with her. No jury is going to believe this one, especially if the employee received good performance evaluations before she complained. Work with employees who have performance problems by engaging them in progressive discipline. Document every warning and performance improvement plan as you go. Otherwise, sudden discipline will look like retaliation.

6. Normally we don’t contest un­­employment benefits, but we decided to appeal in this case. Really? Why did you make an exception this time? Either routinely oppose unemployment benefits for anyone fired for misconduct, or never do so. It doesn’t pass the smell test if you oppose benefits only for someone who just happened to have filed a complaint before she was fired.

7. Yes, the employee’s discrimination complaint was briefly discussed—but not in a bad way—when we considered him for promotion. Any mention of the prior complaint will taint the entire process. And it isn’t relevant. Focus on performance and qualifications and be sure to ask all candidates the same questions.

8. I investigated and wrote a report about the discrimination complaint, but didn’t write a separate report concerning the retaliation complaint. Again, why not? If you don’t write up a report, a jury will think you didn’t take the alleged retaliation seriously—or worse, that you condoned it.

9. No, when we decided to fire him, HR didn’t know he had filed a complaint. How could that be? Monitor all discipline that follows a complaint.

10. Yes, I did tell her we were eliminating her position when the real reason for termination was poor performance. But honestly, it had nothing to do with the prior complaint. If the real reason was poor performance, surely you documented concrete examples of problems. You can’t escape scrutiny simply by inventing a reduction in force. Courts expect you to prove it was a real layoff when the job terminated belonged to a complaining employee.

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