Avoid-Resolve Retaliation Claims

Here are some steps you can take to avoid or resolve retaliation claims:

1. Implement a stand-alone anti-retaliation policy. An explicit policy that announces that unlawful retaliation will not be tolerated should contain internal reporting mechanisms similar to those in unlawful harassment policy.
2. Train employees on anti-retaliation policy and document that the training has occurred.
3. Identify and document when statutorily protected activity, such as claims of discrimination or harassment, have occurred. Retaliation occurs in response to these.
4. When retaliation complaints are made take them seriously and conduct a separate investigation. Finding for the plaintiff on charges of retaliation when the underlying charge of discrimination has been dismissed is a classic compromise by a jury. Retaliation complaints must be handled as carefully as the original complaint.
5. Consider using an outside investigator for major retaliation complaints. The ability to show that a neutral investigation was conducted can be crucial to a defense.
6. Don’t become a victim of Litigation Fear. Don’t let fear cast a lifetime protective shield around a complaining employee. Such employees must still be disciplined for workplace offenses, but documentation must be airtight.

Source: Sheshunoff, Austin, TX, February 17, 1999