September 19, 2014
Here are some steps you can take to avoid or resolve retaliation claims:
- Implement a stand-alone anti-retaliation policy. An explicit policy that announces that unlawful retaliation will not be tolerated should contain internal reporting mechanisms similar to those in unlawful harassment policy.
- Train employees on anti-retaliation policy and document that the training has occurred.
- Identify and document when statutorily protected activity, such as claims of discrimination or harassment, have occurred. Retaliation occurs in response to these.
- When retaliation complaints are made take them seriously and conduct a separate investigation. Finding for the plaintiff on charges of retaliation when the underlying charge of discrimination has been dismissed is a classic compromise by a jury. Retaliation complaints must be handled as carefully as the original complaint.
- Consider using an outside investigator for major retaliation complaints. The ability to show that a neutral investigation was conducted can be crucial to a defense.
- Don't become a victim of Litigation Fear. Don't let fear cast a lifetime protective shield around a complaining employee. Such employees must still be disciplined for workplace offenses, but documentation must be airtight.
Source: Sheshunoff, Austin, TX, February 17, 1999