Articles

Retaliation Claims

January, 2023

HOW TO AVOID RETALIATION CLAIMS

AT THE WORKPLACE

As reported in the winter edition magazine of the Society for Human Resource Management, (SHRM), retaliation is the most common type of claim filed with the federal Equal Employment Opportunity Commission, (EEOC). 

As SHRM reports, “…half of all charges filed in 2021 included a retaliation claim-making it essential for employers to have sound practices in place to prevent retaliation and document the reasons for disciplining and firing employees.”

Sounds practical, right?  Yet, as the Busca Law Firm has experienced, many employers are susceptible to retaliation claims, for some of the reasons outlined in this article.  The article outlines the following reasons:

1. Recognize What Qualifies As Protected Activity.

The SHRM reports that tt is unlawful to retaliate against workers for bringing claims of discrimination based on age, disability, national origin, race, religion and sex.  In Connecticut, these protected categories are expanded to include “race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability, physical disability, including, but not limited to, blindness, status as a veteran or status as a victim of domestic violence.”  Conn. Gen. Stat. §46a-60(b)(1).

Participating in a complaint process at work is one form of protected activity.  Others include:

• Filing a complaint with the EEOC or the Connecticut Commission on Human Rights and Opportunities, (CHRO);
• Serving as a witness or answering questions during an EEOC or CHRO investigation. 

This also includes signing an affidavit or statement in support of another employee’s complaint of discrimination;

• Reporting employment-related discrimination or harassment to a supervisor;
• Declining to follow directives that would result in discrimination;
• Refusing sexual advances or intervening to protect others from sexual harassment;
• Requesting an accommodation for a disability or religious practice;
• Asking managers or co-workers about salary information to uncover potentially discriminatory wages.

These protections apply not only to employees, but job applicants, current full-time, part-time, probationary, seasonal or temporary employees and former employees, regardless of citizenship or work authorization.

• Failure To Train Supervisors

Retaliation claims can be made based upon a manager’s inconsistency in applying and enforcing the employer’s employment policies.  “Or maybe a supervisor took an employee’s discrimination allegation personally and identified the employee for a subsequent layoff.”

Other reasons cited:  An “untrained supervisor may see employees who complain as causing problems for the organization ….”  “Supervisors and managers may also make the mistake of thinking that only firing an employee counts as retaliation.”

Other forms of retaliation include:

• Work-related threats, warnings or reprimands;
• Lowered ratings on performance evaluations;
• Transfers to less prestigious or less desirable positions or worksites;
• Closer scrutiny of the employee’s work than of other employees without a legitimate reason.

The article advises employers to establish a process for handling complaints, which includes human resource personnel and in-house counsel, and create and follow consistent practices that include a “strongly written anti-retaliation policy that is communicated to all staff.”