Subtle actions can spark workplace retaliation claims

Posted by Charles Middleton on 02/08/2019

Q: Retaliation was the most common labor and employment claim in 2017, according to the most recent Equal Employment Opportunity Commission (EEOC) data. What constitutes workplace retaliation?

A: Workplace retaliation occurs when an employer punishes an employee for having engaged in a legally protected activity, such as complaining about unlawful conduct in the workplace or participating as a witness in an investigation. It is important to note that employees are protected against retaliation even if they are wrong that the conduct was contrary to law, so long as the employee had a sincere belief that the behavior about which they complained was illegal. Retaliation can take different forms. For example, firing, demoting or disciplining an employee because the employee made a complaint would be retaliation. However, more subtle actions such as exclusion from important meetings, changing an employee’s work schedule or isolating an employee can also sometimes be a form of retaliation.

Q: What should employers keep in mind before taking action regarding an employee who has raised a complaint?

A: Oklahoma is an at-will employment state, meaning generally employers can take job actions against an employee for any reason, or no reason, so long as the reason is not discriminatory, retaliatory or against public policy. However, when an employer needs to take adverse action against an employee who has recently complained about allegedly unlawful conduct in the workplace, the employer will need to go beyond the at-will presumption and make sure that it has a legitimate business reason for taking the job action. Legitimate business reasons include poor performance, attendance issues, breaking established company rules, etc. On the other hand, if the true reason for wanting to take action against an employee is that the employee’s complaint makes the employee seem “disloyal” or like he or she is not a “team player,” the employer shouldn't take the job action.

Q: How can an employer best avoid a retaliation claim?

A: Employers should implement a clear anti-retaliation policy that prohibits retaliation and provides employees with multiple avenues for reporting retaliation if it occurs. Training on the policy should be provided to all employees and should address both tangible job actions, such as termination or discipline, as well as more subtle actions that can form the basis of a retaliation claim. In addition, before allowing an adverse employment action to go forward against an employee who recently has complained, it's prudent to give the job action an extra level of review. This person’s role will be to ensure that the actions being contemplated against the employee are being taken for legitimate reasons, are consistent with actions taken against other employees who have engaged in similar misconduct, and that unlawful retaliation isn't playing a role in the action.

PAULA BURKES, BUSINESS WRITER

Published by The Oklahoman, February 8, 2019