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Investigate -- Don't Retaliate Handle Employee Complaints With Care

An employee complains about discrimination in the workplace. Her boss does nothing about it. The employee files a discrimination complaint with the Equal Opportunity Employment Commission (EEOC). The boss discharges her.

That's retaliation -- and it's illegal, assuming no legitimate reason existed for the discharge, such as poor performance or insubordination.

What if the boss had demoted the employee, passed her over for a promotion or moved her to a less-desirable position -- solely because she complained to the EEOC? That, too, would constitute retaliation.

When you hear "retaliation," these are probably the kinds of situations you think of: an employee being discharged, demoted, passed over or transferred to a warehouse in Alaska. But retaliation can be subtler than that. Let's examine some other forms it can take and how you can prevent it from triggering a lawsuit against your company.

The Case of the "Inconvenient" Clerk

For instance, a convenience-store clerk applied for a promotion to assistant manager (Lovejoy-Wilson v. NOCO Motor Fuel). Because she suffered from epilepsy, she couldn't get a driver's license. The manager repeatedly refused to promote her because one of the assistant manager's duties was to drive to the bank to make daily deposits.

The clerk suggested that the employer could accommodate her disability by letting her take a bus to the bank or a cab at her own expense. She complained in writing that failing to reasonably accommodate her disability violated the Americans With Disabilities Act (ADA).

The company president sent her a letter calling her allegations "slanderous" and threatening legal action against her if she continued "with this behavior." The company also suspended her without pay for a week. Later, the company offered to make her assistant manager at a store in an undesirable neighborhood where armored cars picked up the receipts. But she maintained she could work at her present store with the reasonable accommodation she had suggested.

The clerk sued, and the trial court dismissed her complaint. On appeal, the U.S. 2nd Circuit Court of Appeals ruled in her favor. It held that the company had violated the ADA by refusing her reasonable-accommodation request and that the president's intimidating threats and suspension constituted unlawful retaliation.

Protected Activities

You may be surprised to learn that retaliation allegations have almost doubled in the last decade, according to the EEOC. In the face of this trend, how can you protect yourself and your company from retaliation allegations?

First, understand what is included in employees' "protected activities" under Title VII of the 1964 Civil Rights Act. You can't punish or retaliate against an employee for:

• Threatening to file a complaint alleging discrimination or harassment,
• Complaining to anyone about alleged discrimination against anyone,
• Refusing to obey an order that the employee reasonably believes is discriminatory, or
• Requesting reasonable accommodation for a disability or religious belief.

In addition, other federal statutes bar you from punishing or retaliating against an employee for:

• Filing a claim for unpaid wages,
• Engaging in union activities, or
• Complaining to the Occupational Safety & Health Administration about safety hazards in the workplace.

And state laws forbid you from punishing or retaliating for filing a workers' compensation claim.

You also risk a retaliation claim if your company demotes, discharges, harasses or refuses to promote an employee who engages in a protected activity.

In addition, anyone related to or associated with an affected employee may file a claim. For example, in EEOC v. Southern Pacific, a railroad employee testified in another employee's national-origin discrimination suit. The court ruled that the company's elimination of the testifying employee's position constituted retaliation.

Prevent Lawsuits

To avoid claims of retaliation, even before an employee complains, establish a set of guidelines for workers to:

1. Complain of discrimination or harassment,
2. Report illegal activities within the company, and
3. Request an accommodation for a disability or religious belief.

Assure employees that they can freely voice their concerns confidentially and without repercussions.

Then create a system for timely handling complaints and requests for accommodation. This would include investigating a complaint, protecting confidentiality, keeping the complainant informed of the investigation's status and writing a final report. While investigating, keep in mind that employees and their co-workers may be more sensitive to discrimination and retaliatory acts after one has submitted a complaint. Also, ask workers to report any further experiences or events resulting from their complaints.

On the other hand, don't be afraid to discipline or discharge an employee for legitimate causes -- even if he or she is involved in a discrimination or retaliation dispute. Just be sure you document all the employee's acts or omissions that support disciplinary action. In addition, document all steps you take to remedy the situation or to alert the employee of negative behavior. Otherwise, the timing of disciplinary action or an unsatisfactory performance review may appear retaliatory.

Your Best Course

Act now to prevent acts of retaliation -- or even the perception of it -- in your workplace. Assure your workforce that you won't tolerate retaliation against employees who complain or blow the whistle on illegal activity. Ask your attorney to help you formulate guidelines for employees to submit complaints and report illegal activities as well as assist you in devising investigative procedures.

Retaliation allegations have almost doubled in the last decade, according to the EEOC.