6 Steps for Avoiding Dumb Retaliation Claims

Retaliation suits are the dumbest of the dumb because they are so easily avoided, but they happen with startling frequency. What should HR do?

·  Have a written policy.  As the backbone for your anti-retaliation program, initiate a policy prohibiting retaliation (see sample below). 

·  Provide training. Just having the policy isn’t enough. Provide training to supervisors and managers about what retaliation consists of and how to avoid it. (Basically, retaliation is any action that would dissuade a reasonable worker from engaging in protected activity). 

·  Don’t fire employees when you’re fired up. Managers and supervisors need to understand that anger should not dictate employment decisions. Managers should do whatever it takes to cool down and stay cool. Part of their job is to act responsibly and professionally, even in the face of false accusations. 

·  Clarify protocols for supervisors. Provide training and refreshers so supervisors know how to react when they receive a complaint from an employee. A supervisor typically is the first person to receive harassment complaints from employees and his or her response is critical in resolving and defending workplace discrimination claims. 

·  Apply policies and practices consistently. Selective enforcement of policies can support a claim of discrimination and retaliation, especially if enforcement is stepped up right after an employee files a complaint. If an employer departs from its usual policy or practice, the legitimate, nondiscriminatory reasons for the exception should be documented. 

·  Publish your complaint reporting procedures. Post them conspicuously and encourage employees to report any retaliation using the same complaint procedure.

Sample Policy Against Discrimination, Harassment, and Retaliation

[Company Name] is committed to providing a work environment free of discrimination and harassment.  It is [Company Name]’s policy that all employees have a right to work in an environment free of discrimination and harassment based on sex, age, race, national origin, religion, disability, genetic information, sexual orientation, marital status, or any other basis protected by federal, state, or local law. [Company Name] prohibits harassment of its employees in any form—by supervisors, coworkers, customers, or suppliers. 

If you feel you have been discriminated against or harassed in any way, it is generally best to tell that person that you find such behavior offensive, that such behavior is against company policy, and that you want him or her to immediately stop.  However, if you are uncomfortable taking this action, or if the conduct does not stop after you have warned the offending person, you should immediately contact your supervisor. If you feel you cannot seek help from your supervisor, then you should contact his or her supervisor or the [Human Resources designee], or higher-level management for assistance.

Every complaint will be investigated as promptly, thoroughly, and impartially as possible. We will protect the confidentiality of complaints to the fullest extent possible.  If the investigation determines that discrimination or harassment has occurred, [Company Name] will take immediate and appropriate action. 

[Company Name] will not retaliate against any employee for complaining about discrimination or harassment. If you feel you have been retaliated against, follow the complaint procedure above.

[Company Name] will ensure that managers and supervisors take positive steps to comply with this policy. They are required to be aware of potential discrimination situations, quickly resolve any discrimination issues that arise, and refrain from retaliation or harassment against any employee involved in the filing, investigation, or resolution of a discrimination claim.

Managers, supervisors, and all other employees are required to cooperate fully with the investigation and resolution of all discrimination and harassment complaints.

Eliminating retaliation—never easy, and certainly not your only challenge. One new one that has many managers confused is the challenge of OFCCP’s new rules for hiring of veterans and individuals with disabilities.

In less time than we think, federal contractors and subcontractors must meet obligations under the hiring benchmark provisions of the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) and the disability utilization goal under Section 503 of the Rehabilitation Act of 1973.

With the OFCCP promising to step up enforcement and requesting an additional $1.1 million in their budget to “strengthen enforcement efforts,” it’s clear that federal contractors and subcontractors must address massive compliance obligations head on, and soon.

Source: HR Daily Adviser