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Retaliation Backfires in Workplace Complaints

March 26, 2018
Two recent cases reported in Massachusetts Lawyers Weekly highlight the risks of acts of retaliation by supervisors or managers against an employee for filing a complaint about discrimination or some other form of alleged illegal treatment in the workplace.
 
Employers sometimes make the mistake of forgetting that an employee does not need to resign or otherwise leave accompany if and when the employee files a complaint. Often, the employee does not leave so the employer needs to be aware of how management and co-workers interact with that employee going forward because an adverse act against the employee could be the basis of an independent retaliation claim. 
 
One of the more often overlooked aspects of any discrimination charge by an incumbent employee is that it really contains two possible claims, the original complaint and a retaliation charge. An employer may lose the retaliation claim even while prevailing on the original complaint. 
 
Examples of retaliation in Massachusetts court cases have included:
  • Firing
  • Demotion 
  • Suspension
  • Loss of pay or loss of overtime
  • Being asked to resign 
  • A change to less desirable job duties 
  • A transfer to another geographic area 
  • Being ostracized or harassed by supervisor or co-workers
Retaliation claims have been on the upswing nationwide for more than 15 years. In Massachusetts retaliation claims sit near the top of all claims filed with the Massachusetts Commission against Discrimination (MCAD). A recent breakdown of retaliation claims shows the following: 
  • FY 2012 - 902 claims (4th most common claim) 
  • FY 2013 - 996 claims (3rd most common claim) 
  • FY 2014 - 911 claims (3rd most common claim)  
  • FY 2015 - 798 claims (4th most common claim)
  • FY 2016-  942 claims (3rd most common claim)
The same trend is occurring on the federal level with almost 49 percent of all charges filed in Fiscal Year 2017 with the U.S. Equal Employment Opportunity Commission (EEOC) involving retaliation.  
 
The employee must show the following to make a retaliation claim:
  • he or she was engaged in protected activity (i.e. filing a complaint)
  • that a complaint was made about the problem, and  
  • that the employee suffered an adverse employment action (i.e. there was a connection between the first two points).  
Massachusetts has many statutes that prohibit workplace retaliation in relationship to an employee complaint: 
  • Massachusetts Anti-Discrimination Statute (MCAD statute) 
  • Massachusetts Worker's Compensation Law 
  • Massachusetts Payment of Wages Statute 
  • Massachusetts Minimum Wage/Overtime Law and 
  • Massachusetts Pay Equity Law
  • Massachusetts Pregnant Workers Fairness Act (anti-adverse action provision)
  • Massachusetts Whistleblower Protection Laws 
 
While the different statutes contain language specific to them, the MCAD statute serves as a useful example of what an anti-retaliation law looks like.
 
Chapter 151B declares it illegal for "any person, employer, labor organizer or employment agency to discharge, expel or otherwise discriminate against any person because he has opposed any practices forbidden under this chapter or because he has filed a complaint, testified or assisted in any proceeding under section five."
 
The same law also prohibits intimidating or threatening an employee with retaliation for exercising his/her rights under the law.  
 
Tips to minimize the risk of a retaliation claim 
 
  1. Make sure employees know whom to go to to file a complaint.  Have a written policy informing employees how to file a complaint. In most cases this will be in your sexual harassment or anti-discrimination policy that you issue to all new hires and annually to all of your employees. Make sure your handbook explains the complaint procedure as well. Train your employees on how to use it and make sure your employees sign that they received it.  
  2. Train your managers/supervisors in how to respond to a complaint promptly and fairly, including how to work closely with HR during the investigation. Don't rely on memory. Make sure supervisors record things such as warnings so that they are included in the investigation file.  
  3. Document the investigative process to make sure you can defend your actions, no matter what they may turn out to be.   
  4. Retaliation complaints may come from an employee feeling left in the dark. Keep the complaining employee informed generally about the progress of the company investigation to the extent appropriate.  
  5. Consider whether or not to break the supervisory relationship with the employee's supervisor if that is the source of the complaint. This may involve reassigning a supervisor to another department or having the employee report to another supervisor.   
  6. Don't promise an employee a particular outcome. An investigation will go where it goes, depending on the facts. But it is crucial to show you are responding seriously to the complaint and fully investigating it and not blaming the victim.  
  7. Communicate internally. Make sure everyone in management who needs to know about this complaint is talking with one another. Trouble could arise if the company is about to do something unrelated to this complaint that will adversely impact the employee, such as closing the employee's department, a layoff, or transferring employees to another site.
 
Employee complaints, investigations and retaliation charges may appear wrapped together but they shouldn't be. Taking the time to follow the tips in this list will help you reduce the risk of a retaliation charge from the get-go.  
 
Please contact the AIM Employer Hotline at 800-470-6277 if you have any questions about this or any other HR related matter. 
 
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