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Retaliation Cases Against Employers Continue Growing

Retaliation Cases Against Employers Continue Growing

The federal Equal Employment Opportunity Commission is seeing more and more retaliation complaints by U.S. employees, with such charges accounting for 47% of all charges in 2017. That’s compared with 37% in 2011.

Employment law attorneys say that the increase is in part due to the fact that the employees who bring retaliation charges have a higher degree of success than those that bring a regular discrimination charge.

There is a lower standard of harm that must be proven for a successful retaliation lawsuit thanks to the U.S. Supreme Court case, Burlington Northern & Santa Fe Railroad vs. White.

While an employee alleging discrimination must prove that they suffered a “materially adverse employment action,” a retaliation plaintiff only needs show that the employer undertook some conduct that may dissuade them from making or supporting a charge.

Also, juries inherently distrust employers and they wouldn’t put it past one to retaliate, according to an article written by Daniel A. Kaplan of the law firm of Foley &Lardner.

Kaplan sets out three steps employers can take to avoid retaliation complaints:

Set clear and unambiguous policies

  • Your company policy should clearly state that retaliation is not permitted.
  • The policy should describe the parameters of inappropriate conduct as well as you can define them.
  • Put the policy in writing.
  • Include a reporting and grievance procedure, including the person or persons to whom the employee can report a retaliation complaint.
  • Have employees sign an acknowledgment of receipt of your policy.

Investigate complaints promptly

  • Remember that anyone who participates in an investigation is likely protected from retaliation (not just the employee who makes the complaint, but witnesses as well).
  • Communicate the results of the investigation to the person who submits the grievance.
  • Take effective remedial measures, including carefully reviewing all disciplinary measures before imposing them. You should also ensure that disciplinary actions are consistent with past practices.

Train management

  • Make sure all of your managers are trained and understand the policy.
  • Ensure they understand who is protected from retaliation (participants, complainants, and even persons related to the complainant in some cases).
  • They should also understand what constitutes retaliatory conduct and, if they are unsure, they should speak to your human resources manager.
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