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.

Related posts:

1. Washington Law Updates for September 2009
2. Understanding Workplace Retaliation

The purpose of anti-retaliation statutes is to protect an employee’s employment so that employees do not feel intimidated as a result of filing charges or participating in an investigation of charges against an employer. To prove a claim of retaliation, an employee must establish that following:

• The employee engaged in protected activity.
• The employer knew the employee was engaged in protected activity.
• The employee suffered an adverse action.
• There is a causal link between the protected activity and the adverse action.

If an employee establishes these elements then the employer must show that there is a legitimate non-discriminatory reason for the action taken.  If the employer does this then in order for the employee to succeed, the employee must show that the employer’s reason is pre-textual and it was actually because of the protected activity.  The employee need not succeed on the underlying claim of discrimination or harassment to prevail on a claim of retaliation.

Examples of Protected Activity

Although not all-inclusive, the following list illustrates some examples of protected activities:

• Filing a charge of discrimination or harassment
• Cooperating with an internal investigation of alleged discriminatory practices
• Serving as a witness in an EEOC investigation or litigation

Examples of Adverse Action

Below are some examples of adverse action:

• Termination
• Refusal to hire
• Denial of promotion
• Unjustified negative evaluations
• Changing work hours
• Diminishing an employee’s responsibilities
• A reduction in benefits
• Transferring to a less desirable location
• Unwarranted disciplinary action

If you are confronting retaliation claims in the workplace or fear that they are looming ahead, contact us to schedule a workplace assessment.

Related posts:

1. Washington Law Updates for September 2009
2. How to Minimize the Risk of Workplace Retaliation Claims