‘Oh, I’ll Show Him!’
The Birth of ‘Retaliation Nation’ and 4 Tips to Avoid the #1 Workplace Claim
Being hit with a job discrimination claim (race, sex, age, etc.) is bad enough, but in the past decade a startling number of employees are throwing a second legal punch by claiming they were retaliated against – disciplined, demoted or even fired – for bringing their original complaint.
More than 42,000 employees filed retaliation claims in 2016, another all-time record. And nearly half (46%) of all job discrimination complaints these days include a ride-along claim of retaliation, making retaliation the number one complaint category. These numbers are expected to rise even higher because the EEOC recently issued new guidelines that define retaliation more broadly.
Even worse, claims of retaliation win in court more often than other types of bias. Why? Look no further than basic human psychology, says attorney Deborah S. Adams of Frost Brown Todd, who will lead a retaliation-prevention panel at the 2017 Labor and Employment Law Advanced Practices (LEAP) conference at Bellagio in Las Vegas, March 29-31.
“Juries ‘get’ retaliation claims,” says Adams. “While most of us have never actually felt the full emotional brunt of an overt act of racial, sexual or age discrimination at work, we can all quickly identify with the feeling of being persecuted for something we’ve said or done. That’s almost universal.”
Retaliation cases are easier to file and easier to prove … It’s no wonder plaintiffs’ lawyers love these cases.
Adams offers these tips on what your organization should do to avoid becoming another retaliation-claim statistic:
- Have stand-alone retaliation policies. Don’t just tack anti-retaliation language onto your discrimination or harassment policies in your handbook. Make retaliation a separate entry. Emphasize your strong stand in favor of employees’ right to engage in protected activity. Clarify that employees who have a complaint should come directly to HR.
- Subject all termination recommendations to the sniff test. If supervisors come with a discipline or termination recommendation, make them prove there’s no retaliation going on. Your first thought should be: How will this look to the outside world – to the average person on the street who probably feels like her own employer is sometimes a bit adversarial to her? Average people sit on juries.
- Train managers on the importance of controlling their emotions. When managers are accused of harassment, discrimination or some other wrongdoing, they may strike back with an adverse action and justify it by thinking, “Hey, you play with fire, you get burned.” Remind supervisors of this legal truism: It’s easy to win a retaliation case even if you lose the underlying claim. They must never lash out at employees who voice or file complaints.
- Beware keywords like malcontent, pot-stirrer, ungrateful, disruptive, bad attitude. Despite your best efforts, managers may use these words to describe complaining employees. Just make sure that people who use them find that their next stop is your office, where they’ll be educated in the stakes of this costly retaliation game.
At LEAP 2017, you’ll discover more tips on how to avoid claims of retaliation and stay in compliance with every other aspect of U.S. employment law. Plus, you’ll have a fabulous time with your peers at the legendary Bellagio – book your room today!