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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 you 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 job 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.”

Retaliation is becoming a bigger issue in U.S. workplaces. Since 2011, retaliation claims annually have been the No. 1 type of claim brought before the EEOC—ahead of even sex, race and age discrimination claims. In 2014, more than 2 in 5 charges (42%) allege some form of retaliation against the employee for pursing the discrimination claim.

One reason for the spike in complaints: The Supreme Court rewrote the definition of “retaliation” two years ago, making it easier for employees to get their retaliation lawsuits into court.

Case in point: Here’s a recent example of how retaliation can quickly happen: A manufacturing company experienced a downturn, so it had to reduce 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.  

The lesson: Hands off complainers. It’s more important than ever to treat all employees equally in day-to-day management and discipline. 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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