Train Supervisors on What Constitutes Retaliation:  The U.S. Equal Employment Opportunity Commission (EEOC) has reported that claims including a retaliation charge rose by 23% in fiscal year 2008.   Vincent Cino, national director of litigation for Jackson Lewis LLP, says roughly 70% of discrimination suits handled by his firm include a retaliation claim.  These statistics are not surprising, considering that accused employees often harbor feelings of resentment following workplace investigations.

Resentment can lead to actions or words, which can be construed as retaliatory.   Suppose an employee complains that her supervisor has sexually harassed her.   The supervisor may be angry and hurt if he considers it a wrongful accusation.  The accused should be counseled that the complainant has a legal right to bring forward complaints of perceived harassment, discrimination, and retaliation, and may simply have a different perception of what occurred.

The accused employee should be cautioned that any inappropriate, post-complaint behavior or words can be construed as retaliation, regardless of whether the retaliation complaint has merit.  The accused employee should also be informed of possible examples of retaliatory conduct or language. Examples might include: (1) overloading the complainant with work, (2) removing work from the complainant, (3) stripping the complainant of highly valued or important duties or assignments, (4) changing the complainant’s work hours, (5) asking the complainant “off the record” why he/she made a formal complaint in lieu of working it out between themselves, (6) disparaging the complainant to others in the workplace, and (7) cutting desired overtime hours, to name a few.

Along these same lines, the manager who counsels the accused employee post-investigation should implement no major changes in work conditions without first consulting the human resources department and legal counsel.   Even a seemingly innocuous change may be perceived by the complainant as retaliatory.  If these changes are indeed necessary and based on legitimate business needs, it is a good idea to open the lines of communication with the complainant to talk the matter through before the changes are implemented.  The business reasons for the changes should also be carefully documented.   The human resources department can play an intermediary role in this process while the post-investigation healing period lingers.

Further, the accused employee should be reminded that witnesses, associates, and employed spouses or family members of the victim must not be retaliated against.  It is essential to educate supervisors and managers that protection extends to others beyond the complaining employee.

When training supervisors, or counseling them post-investigation, it is helpful to reassure them that it is natural to feel angry, fearful, or defensive toward an employee who accuses them of unlawful conduct.  However, they should be reminded that showing anger or acting upon it is more than merely unprofessional, it will exacerbate the problem and may give rise to a retaliation claim.

A thorough investigation procedure includes training managers and supervisors on how to deal with hurt feelings, embarrassment, and anger.