Employer Alert: Understanding Employee Retaliation Protections
Retaliation has been the most common type of EEOC charge for five years, included in more than 50 percent of all charges filed by employees nationally since 2018. Retaliation claims have also been explicitly stated to be an "enforcement priority" by the EEOC, as well as other employer-protection agencies in the coming years, which means charges will only be increasing.
With all this in mind, employers are wise to become educated on the definition, scope, and best practices surrounding retaliation, including how to keep it out of your business, both from an actual and perceived perspective.
Retaliation for what?
Employee protections from retaliation are baked into the cake of almost all employment regulations and rights. They are designed to protect employees from “adverse” or negative action for exercising their rights provided by the passed laws or protections. Examples include designated rights to take leave like Paid Family Leave or FMLA, or even use of NY Paid Sick Leave, but also to engage in activity that is protected under law, including making complaints about harassment or discrimination, reporting safety concerns, or even complaining about things like wages, working conditions, or supervisors. The breadth of employee rights and activity that is protected from retaliation is broad and nuanced, so it is important employers proceed with caution whenever considering taking negative action for certain behavior or actions.
What constitutes “Retaliation”?
Retaliation occurs when an employer (including a manager, supervisor, or administrator employed by the business) takes adverse action against an employee for engaging in protected activity. An adverse action is an action which would “dissuade a reasonable employee from raising a concern about a possible violation or engaging in other related protected activity.” Examples of what is OR could be perceived as retaliation include termination, reducing hours or removing from the schedule, moving to another shift, assigning less desirable jobs/equipment/etc., denying time off requests, or sudden stricter or inconsistent standards or criticism.
In determining whether an action was “retaliation” or legal, agencies look to establish whether there is evidence that the adverse action was taken because of the protected activity, or for some other, legitimate reason. Common examples of what might determine causal connection between protections and actions include:
Timing: Short time elapsed between protected activity and adverse action could point to retaliation-based motivation for the action.
Anecdotal evidence: Reported oral or written comments from a supervisor or other company representative indicating a retaliatory motive.
Consistency/History: Were "Similarly situated" employees were treated more favorably?
How do you prove action wasn’t retaliation?
The best defenses against claims of retaliation being made in the first place, and then defending them if need be, are all tied to reducing any perceived causal connection between the action taken and the protected activity. The best methods of doing this include:
Providing proof that the employer (or Manager, Supervisor, etc.) was not aware that employee had engaged in protected activity when it took the adverse action. In this case, since no knowledge was known of the protected activity, then it would not be possible that retaliation could have occurred as a result of it. For example, if there can be no established proof that a Supervisor knew of an employee’s complaint against them, then that Supervisor could not be accused of having retaliated for negative action taken after the complaint.
Demonstrating that a long period of time occurred between the protected activity and adverse action, which lessens the likelihood that one motivated the other.
Showing the adverse action affected all "similarly situated" employees. For example, if multiple employees are selected for a layoff because of their shorter tenure, and one happens to be an individual who recently took leave, there likely is little evidence that the decision to layoff that employee was motivated by retaliation for the protected action of taking leave.
Proving the employee had genuine performance problems or violated work rules. If an employer can establish that an employee had pre-existing performance or behavior issues that they were counseled on or made aware of prior to the protected activity, it’s unlikely a retaliation claim would stand if that employee was disciplined or separated later, and that the action wouldn’t be tied to a legitimate performance reasons.
How do you prevent retaliation and avoid claims in your business?
Defending retaliation claims can be very costly, time consuming, and distracting for a business. For this reason, employers are wise to implement practices, standards, and behaviors that ensure that retaliation is not tolerated or acceptable in their business to begin with, but also to minimize even the risk for any perceived retaliatory action. To help take a pro-active approach against such activity or claims in your business, we’ve compiled some best practice tips below.
Make sure everyone who is an “employer” knows about this protection and understands the scope and significance of their actions. As we’ve mentioned, through “vicarious liability” the actions of Managers, Supervisors or anyone else with authority in the organization are the actions of the Company in the eyes of the law. Therefore, making sure these individuals are properly trained on what they can, can’t, and should do, is very important to make sure that they aren’t violating rights, intentionally or unintentionally. This includes educating them on the tips following this one…
Make sure any adverse action like warnings, terminations, or other more nuanced accountability measures are undeniably job performance or behavior based. This begins with having standards or metrics for performance and behavior defined to begin with, including handbook policies and job descriptions. If action can be tied back to these black and white business standards and needs, then employers should have no concern about retaliation being perceived.
Be consistent and fair in the treatment of all employees. This includes ensuring that all employees are held to any stated performance or behavior standards or policies, and exceptions are not made. Inconsistent treatment is a sure way to not only welcome retaliation or other claims, but also build resentment and reduces trust.
Be mindful of attitude and conduct. Retaliation only needs to be perceived for a claim to be made, and as mentioned above, even inadvertent or informal comments or actions by those with authority could be the difference of creating that perception or not, let alone could be used as evidence for retaliation in a case later. It’s important that Managers and Supervisors understand this, and behave maturely and professionally at all times, and don’t let stupid comments or loose lips create problems that may not even exist. This includes text messages, chat messages, emails sent, etc. with inappropriate comments.
Documentation is your friend, as usual. When it comes to defending employment decisions, whether formally or informally, documentation is always necessary because nothing happened as you say unless you can prove it happened as you say. Making sure to record any conversations you or your management have with employees about unsatisfactory behavior or performance, no matter how insignificant it seems, is very important for this reason, because it could help demonstrate legitimate reason for adverse action later if the action is tied to a retaliation claim.
Remember that timing is everything. Chances are, without concrete, documented, demonstratable proof of previous reason to take adverse action, if you wait to do this shortly after “protected activity” or rights have occurred, it will be nearly impossible to defend that it wasn’t retaliation. In this case waiting to create more space between the action and the protected activity, would be wise.
