Employers Must Be Extremely Wary of Retaliation Claims

Over the past decade, the Equal Employment Opportunity Commission (“EEOC”) has reported that retaliation is the most common issue alleged by federal employees and the most common discrimination finding in federal sector cases. Nearly half of all claims made to the EEOC are retaliation claims.

The EEOC found that other employers retaliated in violation of the law in greater than 40% of the reported claims, a fact which employers must be aware of. The same is likely true under the anti-retaliation provisions as set forth in the New Jersey Law Against Discrimination. Hence, it is essential that employers take affirmative remedial steps to prevent retaliation. Moreover, employers must immediately and effectively address retaliation if it is reported.

Both federal and New Jersey state law prohibits retaliating against anyone who files a complaint of discrimination, participates in a discrimination proceeding, or otherwise opposes discrimination. Retaliation is a separate and distinct cause of action under both the New Jersey Law Against Discrimination and federal anti-employment discrimination statutes.

In other words, even if the employee’s underlying sexual harassment claim is not sustainable or is proven to be false, retaliating against the complainant or anyone who supported her/him/them is unlawful. Retaliation exposes the employer to compensatory damages and statutory legal fees and costs. Retaliating against a complainant will also extend the statute of limitations for the underlying claims of employment discrimination.

A manager, co-worker, or the alleged violator of the anti-discrimination laws and policies may not fire, demote, harass, or otherwise retaliate against an individual who files a complaint of discrimination, participates in a discrimination proceeding, or otherwise opposes discrimination in the workplace. The law recognizes that retaliation is often subtle. Examples of retaliation against the complainant or witnesses who supported the complainant include, but are not limited to:

1. Bad-mouthing them;
2. Telling others that they are liars;
3. Giving them unfair, negative performance reviews;
4. Not promoting them;
5. Reducing their authority within the company;
6. Making negative compensation decisions (i.e., reduction in salary, not giving standard raises, or reducing or not giving bonuses);
7. Unfairly criticizing their performance(s); and
8. Firing them.

Employers need to take affirmative steps to prohibit, and when it occurs, remediate overt and subtle forms of retaliation.

I recommend the following:

1. The employer must have a handbook which contains the company’s anti-discrimination and anti-retaliation policies set forth in writing;
2. The employer should go over those policies and procedures at least once per year;
3. If an employee files a complaint of discrimination, the complainant must be reminded that the company has anti-retaliation policies in place.  The complainant must be encouraged to immediately report any perceived or actual violations if they feel anyone has retaliated against them;
4. The employer must communicate, both to the complainant and all other witnesses who know of the existence of the claim, that reporting the claim was the correct thing to do and is appreciated by the employer;
5. The employer must instruct the witnesses not to make negative comments about the complainant or the witnesses who supported her/him/them;
6. The employer must tell (both orally and in written notice to follow) the individual or individuals who were accused of violating the company’s discrimination policies, and be reminded that they must not retaliate;
7. The employer must communicate (both orally and in writing the anti-retaliation policies to all witnesses. They must be made aware that they are prohibited from retaliating against anyone and they should immediately report any retaliation to management;
8. The employer must immediately deal with any allegations of retaliation. If retaliation is found to have occurred, the company must take affirmative, immediate steps to ensure that it not happen again. That, of course, could include terminating the retaliator’s employment;
9. The employer should follow up with the complainant after the underlying discrimination allegations are addressed to ensure that they are not being retaliated against; and
10. If the employer is going to give the complainant a negative review, terminate their employment, reduce their salary, or not give a bonus, they must make sure that the file is well-documented and provable. If an employee feels that these decisions were retaliatory, the employer will need to demonstrate to a jury that they were not.

Taking these steps, making the complainant feel “welcome and wanted,” and immediately and effectively addressing discrimination and/or retaliation claims may help the employer avoid the dreaded, embarrassing, expensive employment discrimination lawsuit.