Retaliation is revenge or reprisal. Retaliation means to get even or to take revenge. But, retaliation in employment and the world of Human Resources has a much more specific meaning and connotation. In connection with charges of discrimination, retaliation is a serious issue for employers.
For employers, note that all of the laws that the U.S. Equal Employment Opportunity Commission (EEOC) enforces make it illegal to fire, demote, harass, or otherwise retaliate against either job applicants or employees for these reasons.
The employee or applicant:
- filed a charge of discrimination,
- complained to their employer or another covered entity about discrimination on the job, or
- participated in an employment discrimination proceeding, such as an investigation or a lawsuit.
The law forbids retaliation when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, transfers or lateral moves, layoffs, training, benefits, and any other terms or conditions of employment.
Complaining Employee Is Protected Whether the Claims Are True or False
An employee or applicant is protected by law from retaliation whether his or her charges are proven true or false. This is to preserve and protect their rights and to encourage employees or applicants who experience discrimination or retaliation to come forward and report it.
Retaliation can be stealthy and difficult to witness and document. This makes the obligation of the employer to regularly follow up with any applicant or employee who might face retaliation as a result of the reasons stated above, critical.
The employer would be smart to document the regular follow-up and any charges of retaliation that are reported or witnessed as a result.
Employers must investigate a charge of retaliation, and even a rumor of retaliation, and document the investigation, its findings, and any disciplinary action that resulted.
Following the investigation, the employer still has the obligation to continue to follow up to ensure that retaliation is not occurring. This followup can tax an employer's resources since talking to the complaining employee is not enough. The employer must also examine the environment in which the employee is working.
A manager is charged with scheduling all employees to work shifts. Employee schedule requests are honored by the manager when he can make them happen. Ann complained to HR that the requests of black employees are considered last, if at all. She feels that she and other employees of color receive the poorest schedules and that their work-life needs are not considered.
HR investigates her complaint and concludes that the manager appears to favor white employees in scheduling per their requests. HR interviews other black and Hispanic employees who agree with Ann and can find no employee who disagrees.
The employees are not informed of the outcome of their complaint because of employee confidentiality, but the manager is counseled and warned by his immediate manager and HR, Letters are placed in his employee personnel file and he understands that further discriminatory actions will result in progressive discipline that will include termination.
His manager and HR attempt to place him in another area of the organization, but nothing at his level is available. So, with severe warnings about his future behavior, he returns to his management position with scheduling responsibility.
A month later, Ann returns to HR with a further complaint. He has changed his behavior toward all non-white employees except her. She continues to experience discriminatory behavior and he has taken his behavior a step further. She believes the manager goes out of his way to make sure that she has the worst schedules.
Additionally, he now treats her with disdain: fails to respond to her written requests, ignores her in the office, and has discussed her with other managers. Coworkers have kept her informed of what they hear. Ann charges the manager with retaliation for her reporting of the discrimination.
Another investigation is pursued by HR and the manager's employment is eventually terminated as a result. HR and the organization again responded appropriately to the employee's charges. In this day and age of rapidly rising discrimination lawsuits, it behooves an employer to cover all bases with wisdom, understanding, and ethical behavior.
When an employee charges a manager with discrimination and then he retaliates to punish the employee, HR is legally obligated to officially investigate the charges. While not all poor managerial behavior amounts to discrimination or retaliation, managers have been known to harass and treat employees unfairly.
An employer of choice roots out bad behavior even when the behavior breaks no laws.