5 Tips for Preventing Retaliation Claims

News about job-related retaliation claims might not snag as many headlines as shocking cases of sexual harassment or racial discrimination in the workplace.

But retaliation cases, which deal with employees being punished for legally protected actions made at work, make up almost half of all workplace discrimination charges.

State and local agencies may regulate retaliation, too, so there are plenty of grounds for claims. To avoid these claims, employers need to get proactive. They should start with the following tips.

Make Sure Employees Understand What Retaliation Can Look Like

When you think about retaliation at work, extreme examples — such as employees being fired after reporting an egregious offense — might come to mind.

Of course, that kind of blatant retaliation can and does happen. But there are plenty of other, less obvious instances of retaliation that can hurt your employees and result in lawsuits.

A wide range of behaviors are specifically protected from retaliation by law, including whistleblowing on illegal corporate behavior and reporting discrimination or harassment based on a protected class. Statewide and local laws may regulate retaliation for certain actions, as well.

But the EEOC expanded the definition of “retaliation” even further in 2016 to include actions not specifically mentioned by statute. The expansions were put in place to address the fact that even subtle behavior from managers or colleagues can be very effective at deterring employees from executing on their protected activities.

Here are just a few of the more “subtle” forms of work-related retaliation:

Pre-retaliation– If employees are discouraged from raising issues or pursuing reasonable accommodations in the first place, that could be considered a form of retaliation.

Threats with action that aren’t work-related– Even if what’s being threatened has nothing to do with the workplace, there could still be grounds for a retaliation charge.

Bullying– Although managers tend to be responsible for most cases of retaliation, bullying from peers can be a form of retaliation, too. It’s the employer’s responsibility to make sure all employees are protected from this kind of behavior.

“Good intentioned” retaliation– Consider the case of a manager who changes a complainant’s schedule or role to get them away from offending employees. If these changes are inconvenient or unwanted, it can be perceived as retaliation.

Perceived retaliation– Any employee that can provide enough convincing evidence may be able to make a successful claim, regardless of whether retaliation actually occurred — and especially if you don’t have enough evidence to the contrary.

Focus on the Bottom-Line Benefits, Not the Law

As we mentioned, many laws are in place to protect workers from specific forms of retaliation for protected activities. However, no one (perhaps outside of your legal and HR departments) needs to know the ins and outs of those laws.

What they do need to know is that all employees should feel comfortable coming to their managers with bad news, and have full confidence that it will not negatively affect their experience at work.

We all want to avoid expensive lawsuits, but starting the retaliation discussion from a legal standpoint is problematic. It sends the message that lawsuit avoidance is the primary goal.

This can cause employees to assume that avoiding retaliation is nothing but a compliance exercise that can be disregarded. In reality, a healthy, retaliation-free workplace is a critical component of a successful workplace.

Bonus download: 7 Simple Examples of How to Reinforce Your Anti-Retaliation Message

If your employees are even a little concerned about the prospect of retaliation, it means they don’t truly feel safe at work. It means that they don’t feel that they will be listened to or heard. In that kind of environment, employees won’t be as productive. They won’t be as likely to work well in teams, and they’ll be more likely to leave their jobs at the first opportunity.

Reduced productivity and higher turnover have significant financial costs.

Making your employees understand that keeping your workplace retaliation-free is a priority for objective reasons will help them take it seriously alongside other mission-critical objectives.

Make Messages Clear, Informal, and Frequent

Employee training and education can play a critical role in retaliation prevention. It can help employees understand what retaliation is, exactly, and why it hurts the entire workplace.

But the education won’t work if it feels too formal or too disconnected from the rest of your operations. Leaders should reinforce anti-retaliation fundamentals to employees regularly, clearly, and informally, outside of official training.

Position your anti-retaliation messages as requests for help, or as reminders that insights from all employees are needed to keep your workplace free of any form of retaliation.

For specific examples of these kinds of simple verbal reminders, download How to Communicate Your Anti-Retaliation Message: 7 Simple Examples

You can also emphasize exactly how employees should report problems, and give them multiple options for doing so.

How to prevent retaliation claims

Teach Managers How to Listen and Respond to Complaints

Of course, all of the encouragement to report bad behavior in the world will mean very little if managers still react poorly to bad news when it’s actually delivered.

The ability to listen attentively is far from a “soft skill” and has very tangible benefits for employers.

Make sure all managers understand the power of nonverbal communication, including eye contact (put down the phone and close the laptop), facial expressions (no grimaces or eye rolling), and body language. In the best employee training programs, managers can practice these skills in a safe environment and get assessed on what they did right and how they can improve.

Managers must understand the importance of making time for these kinds of complaints. They need to know how to ask questions until they’re sure that they fully understand the issue. Finally, they need to know how to respond to complaints without making a judgment or even sounding judgmental.

A poor reaction to a complaint can quickly lay the groundwork for a future retaliation charge.

Address the Underlying Problems With Care

In some ways, retaliation cases are dealt with almost completely separately from the issues that caused the alleged retaliation in the first place. For example, your company could be found guilty for retaliating even if they aren’t held liable for the initial harassment charge that prompted the retaliation.

However, we all know that without that initial issue, the subsequent retaliation claims would be nonexistent.

If the initial reports aren’t handled with care after they’re made, it will send a clear message that you don’t actually mean what you say about welcoming all feedback — regardless of how often you’ve encouraged reports or how carefully you’ve listened when issues were brought to you.

Investigations should be prompt and confidential if they involve other employees (don’t discuss the charges with anyone not directly involved in the issue, and direct any others involved to keep the issue to themselves). Keep related employees posted on developments so that they know you haven’t forgotten about their concerns.
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Finally, if you’re looking for professionals to help you to eliminate the potential for retaliation in your workplace, please contact us at ELI. Our team has deep legal expertise and specializes in helping workplaces achieve long-term cultural change.

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