Courts have held that in workplace retaliation claims, if an employer’s adverse action would deter a reasonable person from making a complaint or assisting in a complaint, then it constitutes illegal retaliation.
Difficulties arise when discipline is necessary because an employee is engaged in both misconduct and in protected activity. So when imposing discipline, an employer must ensure that there is no connection between the employee’s protected activity and the employer’s disciplinary action.
The most persuasive way for an employer to prove that the adverse consequences had nothing to do with the employee’s exercise of a protected right is to have evidence that demonstrates how the adverse action was going to happen regardless of the protected activity.
Employers who keep themselves informed on what constitutes the appearance of workplace retaliation are going to be in a better position to prevent it. Education and communication are key factors in accomplishing this. For example:
- Explicitly prohibit workplace retaliation in written employment policies.
- Publish and follow complaint and grievance procedures.
- Immediately address an employee’s complaint consistently with those procedures.
- Train all employees on retaliation and the complaint and grievance process (it is not enough to just publish it).
- Provide additional training directed specifically for those who are in a supervisory position to inform them of their responsibilities as supervisors.
- Communicate openly and frequently with employees who have engaged in protected conduct. Keep accurate and complete documentation when an employee engages in protected activity, faces discipline or has complained of workplace retaliation. If management fails to document it, the rest of the world will conclude that it did not happen.
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