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Top Tips: Avoiding Employee Retaliation Claims

Retaliation claims are now the #1 type of complaint filed with government agencies. Many recent cases have shown that employers can succeed at defeating an employee’s underlying discrimination claim, and yet be found liable for retaliating against that employee for complaining about the unfounded discriminatory conduct.

The following tips should help employers avoid claims of retaliation:

  1. Have a written anti-retaliation policy, educate your supervisors and managers about its requirements, and make sure your employees have been trained on the policy.
  2. Remember that even if a complaint lacks merit or you believe it may have been filed in “bad faith,” you still can’t retaliate unless you can prove the employee intentionally filed a knowingly false complaint (which is very difficult to prove absent “smoking gun” evidence).
  3. Communicate with the complaining employee. Let the employee know you take his or her complaints seriously, you are investigating the issue, and inform the employee of the general results of the investigation.
  4. Document, document, document. It is important that such documentation be consistently maintained where there are performance or behavior problems, and not just after the employee files a complaint or engages in protected activity. If you start to document only after there is protected activity, it may look retaliatory to a jury.
  5. Evaluate any planned adverse employment actions to ensure the employee in question is being treated consistently with the company’s policies and procedures, with past performance evaluations and disciplinary action in the employee’s personnel file, and with how other similarly-situated employees have been treated. Tread especially cautiously if the employee you intend to take adverse action against has recently (within the last 60 days) engaged in any type of protected activity.