Preventing Workplace Retaliation
Retaliation is consistently the most frequently filed charge with the EEOC, accounting for more than half of all charges in recent years. For HR professionals preparing for the SHRM exam, understanding what constitutes retaliation, how to prevent it, and how to respond when allegations arise is critical. Retaliation claims can accompany any underlying discrimination, harassment, or whistleblower complaint, making this a topic that intersects with virtually every area of employment law.
What Constitutes Retaliation?
Retaliation occurs when an employer takes an adverse action against an employee because the employee engaged in a "protected activity." The three elements of a retaliation claim are:
- Protected activity: The employee engaged in activity protected by law.
- Adverse action: The employer took a materially adverse action against the employee.
- Causal connection: There is a connection between the protected activity and the adverse action.
Protected Activities
Protected activities generally fall into two categories:
- Opposition: Opposing a practice the employee reasonably believes to be discriminatory or illegal. Examples include filing a complaint of discrimination or harassment (internally or externally), refusing to obey an order the employee reasonably believes is discriminatory, complaining about unequal pay or unfair treatment, and requesting a reasonable accommodation under the ADA.
- Participation: Participating in an employment discrimination proceeding. This includes filing a charge with the EEOC, serving as a witness in an investigation, providing information during an investigation, and testifying in a hearing or trial. The participation clause provides broader protection than the opposition clause because the employee does not need to show that the underlying belief was reasonable.
Adverse Actions
Following the Supreme Court's decision in Burlington Northern v. White (2006), an "adverse action" in the retaliation context is any action that would dissuade a reasonable worker from engaging in protected activity. This is a broader standard than the adverse action required for a substantive discrimination claim. Examples of adverse actions that can support a retaliation claim include:
- Termination, demotion, or suspension.
- Reduction in pay or hours.
- Denial of promotion or transfer.
- Negative performance evaluations (if unjustified).
- Reassignment to less desirable duties or shifts.
- Increased scrutiny or micromanagement.
- Exclusion from meetings, training, or social events.
- Threats or intimidation.
- Actions against close family members employed by the same employer (as established in Thompson v. North American Stainless).
Establishing Causal Connection
The causal connection between the protected activity and the adverse action can be established through direct evidence (such as statements by decision-makers linking the adverse action to the protected activity) or circumstantial evidence, including temporal proximity (the adverse action occurred shortly after the protected activity), deviation from standard procedures, differential treatment compared to similarly situated employees, and the employer's knowledge of the protected activity.
Practical Prevention Strategies
HR professionals should implement comprehensive strategies to prevent retaliation:
- Policy development: Maintain a clear, written anti-retaliation policy that defines retaliation, provides examples, explains reporting procedures, and outlines consequences for engaging in retaliatory conduct.
- Training programs: Conduct regular training for all managers and supervisors on recognizing and avoiding retaliatory behavior. Training should include realistic scenarios and emphasize that even well-intentioned actions can constitute retaliation.
- Separation of roles: Ensure that the person who is the subject of a complaint does not make or influence employment decisions about the complainant. If the complainant's supervisor is the subject of the complaint, consider temporarily reporting arrangements.
- Documentation practices: Maintain consistent documentation of all employment decisions, with clear articulation of legitimate business reasons, particularly for decisions involving employees who have engaged in protected activity.
- Monitoring: After an employee files a complaint or participates in an investigation, HR should proactively monitor the situation for signs of retaliatory behavior.
Responding to Retaliation Allegations
When an employee alleges retaliation, HR should take immediate action by accepting the complaint seriously and documenting the specific allegations, conducting a thorough and impartial investigation, reviewing the timeline of events to assess the relationship between the protected activity and the alleged adverse action, interviewing all relevant witnesses and reviewing documentary evidence, making a determination based on the evidence, taking appropriate corrective action if retaliation is substantiated, and communicating the outcome to the complainant while maintaining appropriate confidentiality.
Common Pitfalls to Avoid
HR professionals should be particularly cautious about several common retaliation pitfalls:
- Taking adverse action shortly after learning of protected activity, even if the action is justified, can create a strong inference of retaliation. If legitimate action is necessary, document the business justification thoroughly.
- Allowing managers to "manage out" an employee who has filed a complaint, through heightened scrutiny, impossible standards, or isolation.
- Treating the complainant differently from other employees in any way, even with positive intent (such as being overly cautious about giving constructive feedback).
- Disclosing the identity of the complainant to individuals who do not need to know, which can facilitate retaliatory conduct by others.
SHRM Exam Tips
For the SHRM exam, remember that retaliation is the most common EEOC charge, that the adverse action standard for retaliation (Burlington Northern) is broader than for discrimination claims, that both opposition and participation are protected activities, and that temporal proximity is a key factor in establishing causation. Understanding the difference between the opposition clause and participation clause protections is also commonly tested.