Retaliation Claims Are Difficult for Either Side
A recent Law.com post explored retaliation claims from both the employer and the employee side. The post was entitled “Lawyers Urge Employers to Shift Strategy Toward Retaliation Claims” and was by Tresa Baldas of The National Law Journal.
By “retaliation claims’ we mean claims made by employees under anti-discrimination statutes claiming that after they complained of discrimination the employer retaliated. Law.com reports that retaliation claims rose by 18% in 2008 and reached record levels.
According to the post, employer-side attorneys are urging employers to fight back against an “onslaught’ of retaliation claims. They stress that “shoddy” work or “unethical”behavior should not be ignored just because a retaliation suit could follow. Law.com also reports that employers are wary of retaliation claims, especially after one court held that reprisals such as changes in shifts and exclusion form meetings as retaliation.
But, according to Law.com, employee-rights attorneys stress that retaliation claims are even more difficult for employees. They note that employers have gotten “very clever” at retaliation. Law.com quotes one employment attorney, Gary Phelan, summing it all up as a matter of timing and comparison:
Retaliation is all about timing. You complain, and then compare what happened before and what happened after. It makes juries angry and it lends itself to punitive damages.
We agree. In this blog, we take the perspective of the small business owner or manager and try to derive better management practices from developments in the world of business litigation (within which we include employment matters). From that perspective, documentation of “shoddy” work and “unethical” behavior should have begun long before a retaliation complaint was made. In that case, documentation and disciplinary action related to “shoddy” work would merely have continued as before. It should not be seen as a new practice, possibly a reprisal, in response to a discrimination complaint.
And, if trying to employ “better” practices, an employer just wouldn’t think of resorting to petty actions such as arbitrary shift changes or exclusion from meetings. If the employer needs to make some legitimate changes in working conditions that might be perceived as “retaliation,” the employer should consult an attorney.
In legal blogs, the suggestion “consult an attorney” can sometimes come across as mere self-promotion. But, remember the situation we’re discussing is that a discrimination complaint has already been made. The complaint needs to be taken seriously. At that stage, you absolutely should be consulting an attorney and reviewing proposed changes in the complainant’s working conditions.
