5 Common Misnomers Re: Employer Retaliation

We all know that the laws enforced by the U.S. Equal Employment Opportunity Commission (EEOC) make it illegal to fire, demote, harass, or otherwise retaliate against either job applicants or employees based upon the individual doing any of the following:

  • filing a charge of discrimination,
  • complaining to their employer about discrimination on the job, or
  • participating in an employment discrimination proceeding, such as an investigation or a lawsuit.

In addition, most state anti-retaliation laws provide remedies for any discrimination or “adverse employment action.” But there is still a lot of misunderstanding about the extent of the definition of retaliation. As a rule of thumb, if the action could look like retaliation from the outside, stop and think through the entire situation before taking action. Otherwise, you might find yourself having to defend your actions.

The following are the 5 most common misunderstandings to watch out for:

  1. It’s not retaliation if the employee quits.

It is not uncommon for an individual to resign after an uncomfortable conflict or investigation. In some cases, this result is for the better for both the individual and the company. However, employers and managers need to ensure that they did not deviate from normal practices in order to urge the employee to resign. When courts conclude that the employer was trying to get the worker to quit, or made working conditions intolerable, then they declare a “constructive discharge,” and allow the victim full remedies after quitting. Protection: Establish a process of getting back to work after a conflict or investigation that ensures the affected employee is treated fairly and appropriately.  

  1. We’re going in to slow season, so they can’t prove retaliation if we reduce her hours.

We hear of this often, especially in seasonal industries where a reduction in hours is common at certain times during the year. However, this does not automatically provide protection for the employer. For example, an employee complains that her supervisor is making lewd gestures at her and she is fearful about walking to her car at the end of her shift. An investigation results in a reprimand to the Supervisor. The Supervisor is a high performer and the company decides not to terminate. At the end of the busy season, the Supervisor is asked to provide a list of those employees who he suggests should have their hours reduced or be laid off, and the complainant is at the top of the list. The Supervisor says she is a bit slow and not friendly to guests. On the surface this seems like a legitimate reason to reduce hours. But when customer surveys are reviewed, she consistently has high scores. Yes, this is likely retaliation. Protection:  Review recent actions with any employees that are subject to adverse actions, even when it is a regular occurrence such as seasonal layoffs, to ensure the basis for the action is sound.

  1. As long as I don’t tell HR about the complaint, I can just move the employee to another department and the problem is solved.

At company A, employees submit their time-off requests to their department manager who generally approves the time as first come first served, but also considers the reason for the time off request. Jose has requested time off on several occasions with the reason of attending family matters such as a church services or funerals. After a couple of his requests being denied, Jose complained to his manager that he and a couple of other Hispanic employees are frustrated that their time-off requests seem to be denied more often the other non-Hispanic employees. The manager comments that Hispanics have so much family that they can’t expect to get all of their requests approved and maybe they should stop having kids. Two weeks later, a new employee with a specific skill set is moved into their department, and the Manager sees this a great opportunity to move Jose out of the department into a position that is on a less desirable shift. This is not an easy answer. It’s retaliation. Protection: HR should have a policy in place to talk with each employee that is being moved to ensure they understand why is it a company decision. Generally, if the employee believes that it is due to other reasons, such as retaliation, they will bring it up at this time. 

  1. The victim is protected, but the complainant is a gossip who always stirs up drama, so we can terminate her without it being retaliation.

We expect and require employees to participate in a workplace investigation when they have information that could be useful in determining the outcome of the case.  Often, the organization would not be aware of problems in the workplace without employees coming forward. However, most of us have dealt with the employee who feels it is always her job to report everything…..personal matters, gossip, what the rumor mill says, you know the type. But a complaint is a complaint, and the complainant has protection rights the same as anyone involved in the incident. Often supervisors and managers are not aware of these rights and by changing the way they act toward this employee, they could be guilty of retaliation. Protection: Train all supervisors, managers, and executives about the potential liability from retaliation. And remind everyone involved in a complaint or investigation of their rights and responsibilities every time. 

  1. An employee who has complained can be terminated for violating company policy as long as it is unrelated to the topic of the complaint.

Although employees cannot be terminated for participating in protected activity, this only applies as long as their behavior is lawful and does not violate the company code of the conduct. That being said, employers must look at the severity of the action, and the reason for the action, in order to determine if the action could be construed as retaliation. For example, Sherry has a physical confrontation with Ally. After the incident, Sherry notifies HR and an investigation ensues. Ally is terminated for hitting Sherry, and although the company feels Sherry may have provoked the incident, there is no proof and Sherry is not disciplined. The next day, Sherry’s manager finds that she has been using her company email for personal business in violation of company policy. This is reported to HR and Sherry is terminated. Sherry report this matter to the EEOC and claims that others use their company email often, including her manager, and are not reprimanded. In addition, Sherry claims that the personal email use was to set up a security service to walk her to her car after work as she was frightened that Ally might return to do her harm. The outcome, Sherry got her job back with back pay and penalties. Protection: Before using violation of policy as a reason for terminating an employee, ensure that the policy is consistently upheld and the penalty is appropriate.

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