April 25, 2023

We’ve discussed workplace discrimination and harassment and how to ensure you treat all employees fairly and avoid potential litigation. However, many employers fail to understand the complete picture of workplace retaliation—which often follows discrimination.

Of course, you care about your team. You can’t imagine discriminating against them, never mind punishing them for acting within their rights.

But this is where it gets tricky—and why workplace retaliation claims are the most common filed with the Equal Employment Opportunity Commission (EEOC). Employers often fail to: 

  • Understand what falls under protected activity
  • Train management on handling employee complaints
  • Develop a complaint process and policy
  • Enforce policies equally company-wide

So, what qualifies as retaliation, and how can you avoid it in your organization? We’re breaking it down below.

What is workplace retaliation?

Workplace retaliation occurs when an employer punishes an employee for engaging in protected activity. This can come from a manager, supervisor, administrator, or business owner.

For instance, this could mean a salary reduction, denying a raise or promotion, demotion, or job or schedule change. More subtle workplace retaliation examples can include a negative performance review or removal from an important project.

These are known as adverse actions, as they are meant to intimidate a reasonable employee from making a complaint against the employer or engaging in any protected activity.

What qualifies as protected activity?

Under federal law, employees and applicants have the right to complain about workplace harassment or discrimination directly to their employer and external bodies like the EEOC without fear of retaliation. There are many types of protected activity, such as:

  • Filing an EEO charge, complaint, investigation, or lawsuit
  • Acting as a witness or answering questions during a discrimination or harassment investigation
  • Reporting discrimination or harassment to a manager or supervisor
  • Declining orders that would result in discrimination
  • Rebuffing sexual harassment or intervening to protect others
  • Requesting a religious or disability accommodation
  • Inquiring about salary information with managers or coworkers to uncover potentially discriminatory wages
  • Discussing wages, benefits, or other working conditions

A complaint doesn’t have to be formal to be protected—it is protected as long as the employee was acting on a reasonable belief that something in the workplace may violate EEO laws.

Keep in mind that these protections apply to all:

  • Employees (full-time, part-time, seasonal, temporary, and probationary)
  • Job candidates
  • Former employees covered by EEO laws
  • Employees who complain about perceived discrimination against coworkers

Their citizenship or work authorization is irrelevant.

How does this relate to disability accommodation requests?

Workplace retaliation can occur when an employee with a disability requests a reasonable accommodation and then experiences adverse action(s) as a result. Even if they receive the accommodation, a manager or coworkers could retaliate in one of the ways listed above or by creating a hostile work environment.

Employers have a legal obligation to provide reasonable accommodations to employees with disabilities. They cannot retaliate against employees for requesting an accommodation or exercising their rights under the Americans with Disabilities Act (ADA).

To avoid workplace retaliation claims, employers must create a culture that supports disability accommodations and ensure employees feel comfortable requesting them without fear of retaliation. 

Learn how to properly handle an ADA accommodation request properly to give employees what they need and keep your company compliant.

How to Prevent Workplace Retaliation Claims

In addition to understanding what qualifies as protected activity and illegal adverse actions, employers can create a safe company culture and avoid workplace retaliation by:

Creating well-defined policies

Establish detailed anti-discrimination and anti-retaliation policies that are communicated to all employees. Clearly state that retaliation is prohibited and encourage employees to report retaliatory behavior immediately.

Key elements of a solid anti-retaliation policy include:

  • Examples of retaliatory behavior
  • Guidance on avoiding actual or perceived retaliation
  • A complaint process for staff to report retaliation
  • An outline of the investigation process
  • A statement that employees may be disciplined or fired for retaliation

Establishing a complaint process

When an employee makes a complaint or raises concerns of retaliation, adhere to the complaint process as outlined in your anti-retaliation policy by:

  • Taking every complaint seriously and documenting it
  • Asking the employee questions to gain a full understanding of their concern
  • Following through with the investigation process

Provide multiple channels for employees to raise concerns or report incidents of retaliation. For example, if an employee has a complaint against their direct supervisor, they will likely want to report it to someone else. Make it clear who they can go to—whether it’s an HR staff member or an alternate manager.

Encouraging open communication

Encourage open communication between employees and managers through regular interactions. Managers should schedule meetings and office hours so their teams know when to discuss concerns. Building this trust through consistent engagement will make employees feel more comfortable reporting discrimination, harassment, or retaliation if they do arise.

Many companies also establish an open-door policy to foster a transparent, communicative work environment. An open-door culture has many benefits, including learning about issues and addressing them early—but your policy must be carefully thought out to be successful.

Training management on anti-retaliation practices

Similarly to harassment training for managers, employers should hold separate training on workplace retaliation for those in leadership positions. This should cover: 

  • The anti-retaliation policy 
  • The discrimination and retaliation complaint process
  • Common behaviors associated with retaliation and how to identify and avoid them
  • Enforcing these policies and practices consistently across their teams
  • That they CANNOT punish an applicant or employee for filing a complaint

Receiving allegations of harassment or discrimination can lead to heated, emotional reactions, often getting managers in hot water. It’s easy to take this serious complaint personally and want to defend yourself or punish an employee. 

Hence why training leadership on what they can and cannot do is vital to mitigating further issues!

At the end of the day, you can prevent workplace retaliation claims by creating a culture of open communication, transparency, and fairness accompanied by solid policies. And when you prioritize diversity, equity, and inclusion, the rest should come naturally, and you’ll lower your risk of discrimination and harassment issues to begin with!

Need guidance on establishing these policies and processes? Contact BlueLion today at 603-818-4131 or info@bluelionllc.com to learn how our HR consultants can help you create a safe, inclusive work environment!

The information on this website, including its newsletters, is not, nor is it intended to be legal advice. You should contact an attorney or HR specialist for advice on your individual situation.