Author: Stephen D. Hans
Although there are thousands of employment discrimination cases filed every year, they are not easy for the plaintiff to win. The plaintiff must persuade juries that their employer made an employment decision based on a personal bias against race, religion, sex, age, etc. However, juries are much more receptive to a claim that a manager, supervisor or employer treated an employee unfairly after he or she made an accusation of discrimination or harassment.
Because jurors often see the act of striking back at complaining employees as a natural reaction and human nature, the employer is often the one who suffers in such cases. Employees who file retaliation claims and win are frequently awarded punitive damages—sometimes numbering in the millions. Therefore, a retaliation claim is not something an employer should take lightly.
Reduce your exposure to employee retaliation claims
While it is unlikely you can completely avoid retaliation claims, there are steps you can take that can reduce your risk of having such claims filed against you.
Implement policies against retaliation. You should already have anti-discrimination and harassment policies in place. If your existing policies don’t cover retaliation, then you should update your current policies to include a strong non-retaliation policy. This policy should assure your employees that they will not suffer reprisal for filing complaints. The policy should also contain the process for reporting any retaliation that might occur.
Train managers and supervisors. Implementing non-retaliation policies is a good start but you should also provide training to your supervisors and managers. These employees need to understand what non-retaliation means and how to apply the policy correctly. Provide training on what constitutes retaliation and how to respond to a retaliation complaint. Further, all training should be documented in the event you need to show the steps you have taken to prevent unlawful retaliation.
Do not treat claimants differently. You should never treat an employee who has filed a complaint like an outcast or pariah. Such treatment only validates the employee’s claim of unlawful conduct and renders your policies invalid. Instead, be proactive and communicate with the claimant. Provide him or her with a copy of your non-discrimination policy and offer to help them if they experience problems. And you should follow up to ensure there have been no further problems or incidents. All of these interactions with the claimant should also be documented and kept on file.
Review subsequent employment actions. Any employment actions taken after the complaint that affect the claimant should be reviewed before you make any changes. Such as change of supervisors, transfers to different departments, change of schedule, etc. Your personnel department, legal adviser and/or management personnel should review any proposed actions/changes to ensure that it does not constitute retaliation.
To discuss retaliation claims contact a NY business litigation attorney
When facing a retaliation claim, keep a cool head and talk to an experienced NY business litigation attorney about your situation. Your attorney can help you determine the best approach to take in your circumstances.