A Dish Best Served Cold?

Could that employee you recently reprimanded or terminated be seeking revenge by claiming discrimination? Here's how to recognize -- and reduce -- your risk for retaliation claims.

Retaliation claims are coming in at five times the rate of all other types of discrimination claims, according to the most recent statistics from the Equal Employment Opportunity Commission (EEOC). In 2015 alone, the EEOC received 39,757 claims -- the highest number in any of the past 20 years.

Settlement amounts for these claims are climbing too. In 2003, the EEOC levied approximately $80 million in fines for retaliation claims against U.S companies. Ten years later, that number had more than doubled to $169 million.

Part of being a good manager is setting consequences for misbehavior and following through when the behavior is not corrected. But if you've recently had to reprimand or terminate an employee, it may be wise to ask whether that person might seek revenge in the form of a retaliation claim.

Recognize the Risk

The rise in retaliation claims relative to other types of discrimination claims demonstrates that employers are generally aware of the need to avoid discrimination on the basis of race, sex, age, disability, and other protected categories. However, it also demonstrates that many employers aren't thinking through their reprimand or termination policies as they relate to these protected categories.

Generally speaking, employers are allowed to take "adverse actions" like refusing a promotion, demoting, reprimanding, or terminating employees. However, employers are not allowed to do these things in response to an action related to the rights of a protected group -- whether the employee is a member of that protected group or not.

What does this mean? In short, it means that you can reprimand or terminate employees. You just can't do it for reasons that relate to race, sex, age, disability, or any other protected category.

Take a moment to step into the perspective of the EEOC. Remember: this agency's job is to enforce antidiscrimination laws, not to watch how you run your business from day to day. Without the policies and documentation to back up your sound business reasons for taking an adverse action, you may end up looking as if you retaliated for a prohibited reason -- and your business may face a hefty fine as a result.

Reduce the Risk

How can companies reduce the risk of facing retaliation claims or the fines that come with them? Keep these steps in mind:

  1. Create clear goals, objectives, and performance standards, and review performance regularly.
    Employees are more productive when they understand what their role is in the organization and when they know they have achieved the goals related to their jobs. You'll also be creating the documentation you need to justify an adverse action against an employee who isn't meeting those goals. Make goals and objectives SMART: Specific, Measurable, Attainable, Realistic, and Timely, and review employees' progress more than once per year.
  2. Create a comprehensive antidiscrimination policy, train your team, and make it part of your culture.
    Employees who work within a culture that is committed to stopping discrimination are less likely to feel discriminated against when they face an adverse action – and an adverse action is less likely to be motivated by conscious or unconscious bias. Include definitions of terms like "discrimination" or "harassment," give examples of acceptable and unacceptable situations in which adverse actions must be taken, and provide a clear and straightforward method for lodging and handling complaints.
  3. Document with extra care if the employee bringing the claim is doing poorly.
    One of the hardest parts of protecting your company against retaliation claims is that these claims can be "doubled up." In other words, simply bringing the claim puts the employee into a protected category -- the category of people who are bringing claims. An adverse action against the employee after the claim is filed, then, is highly likely to be read as retaliation even if that isn't your intent.
    To mitigate this risk, document with special care if the employee has an open, or a recently closed, retaliation claim. Keep track of every interaction with the employee regarding the quality of their work, their absenteeism, or any other issue that may result in an adverse action. Build a strong, repeated case for the adverse action in writing before you take it.
  4. Mitigate your exposure.
    Working with a staffing firm to find qualified contract or temporary workers can help you mitigate your exposure to retaliation claims and other employer liability. When you hire temp or contract workers, your staffing firm is the employer of record, not your own company. Your staffing partner can also take on tasks like screening and onboarding candidates, so that your own team can focus on doing its best work.

Contact Alkar Human Resources today to make sure your policies are in compliance, and your employees aren't threatening retaliation!