How to Avoid a Workplace Retaliation Claim

While human resource professionals know the importance of following workplace anti-discrimination laws, they also must ensure that employees who report discrimination do not face retaliation for having done so. The reason for this is simple: The most common type of claim filed with the U.S. Equal Employment Opportunity Commission (EEOC) is retaliation. More than half the charges filed with the EEOC in fiscal year 2022 included a retaliation claim.

As a result, employers must have strong policies to prevent retaliation and document the reasons for taking any disciplinary action against or terminating employees. Employers must consistently apply those policies and practices to all employees.

Employers also can adhere to the following four practices to minimize the risk of retaliation claims.

Recognize Protected Activity

Laws that protect employees and applicants from discrimination on various protected characteristics also make it unlawful for employers to retaliate against them for bringing discrimination claims. A formal complaint of discrimination is not the only form of protected activity. Other unspecified acts that oppose discrimination also may be protected activity, as long as the employee was acting on a reasonable belief that discrimination in the workplace occurred. For instance, refusing sexual advances, complaining about perceived discrimination of co-workers, and declining to follow instructions that would result in discrimination are also protected activities.

Train Supervisors

Supervisors should undergo training specifically designed to minimize the risk of retaliation claims. For example, they should understand the necessity of consistently applying and enforcing employment policies. They also should not take employment discrimination complaints personally and retaliate with future layoffs or disciplinary action that punishes employees for participating in the complaint process. Supervisors also should not take any actions that could be misconstrued as a determent for employees to participate in the complaint process.

Establish a Complaint Process

Employers should establish a clear process for handling complaints. For example, employers should designate a staff member to review proposed employment actions and ensure they are non-discriminatory and nonretaliatory. In addition, if employees raise questions about potential EEO violations, management and human resource personnel should be trained to respond to and manage the complaints properly.

Create and Follow Consistent Practices

Finally, establishing and following clear and consistent anti-retaliation workplace policies is key to avoiding discrimination and retaliation complaints. Employers should be clear that retaliation is unacceptable, and employees should immediately report it. In addition, any complaints of retaliation should be promptly and thoroughly investigated.