Everybody hurts when employers retaliate | Employer Handbook

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Here’s a scenario to consider: An employee approaches human resources and alleges that his supervisor is being overly critical of his performance. Although the employee cannot point to any specific comments or actions by the supervisor, the employee has a “feeling” that the supervisor is subjecting him to more scrutiny than his co-workers because of his race.

Human resources immediately investigates by, among other things, interviewing the supervisor and others, reviewing work product, and comparing past performance feedback for the complaining employee and his peers. In the end, HR determines that the performance feedback was legitimate and based on well-documented performance issues. The matter is closed, and everyone goes along on their merry ways. Right?

Not in this case. The supervisor stews in her office. She feels like she has always done her best to treat everyone on her team fairly and to give them honest and constructive feedback, but as payback for her good work, she has now been subjected to an intrusive investigation by human resources. Even worse, in her eyes, she now has a member of her team who is unfairly calling her a racist. She is offended and hurt, perhaps justifiably.

A few weeks later, the supervisor’s manager informs her that business has slowed down due to the loss of a big customer and instructs the supervisor to eliminate one position from the team as part of cost reduction measures. Before even thinking about business needs or headcount in the department, the supervisor knows exactly who is getting the axe …

Hopefully you can see the problem here. If the supervisor were to select the employee who filed the complaint with HR because the employee filed the complaint, then the employer and the supervisor could be found liable for retaliation, which is prohibited under applicable law. And even if that wasn’t the reason for selecting that employee, the timing alone could still result in a potentially expensive legal claim. This is not to say that the employee is 100% protected because he made a complaint, but these matters can be very complicated, and many employers do not think through these potential issues before making final decisions.

Here’s the thing: I can pretty confidently say that almost all employers out there know that they cannot fire someone because of their race, religion or other protected characteristic. In my experience, most employers, business owners, managers and human resources professionals are committed to the principles of equal opportunity and non-discrimination and do their best to comply with these important laws.

However, the issue of retaliation is a bit more complicated, and situations like the one described above occur much more regularly, including in the offices of even the most well-intentioned employers. It can hurt to be accused of bigotry, malfeasance or other improper action, but an overreaction that results in unlawful retaliation can end up hurting everyone much, much more.

What exactly is retaliation? Retaliation occurs when an employer takes an adverse action against an employee for engaging in legally protected activity. That protected activity might include among other things:

• Filing a complaint, whether formal or informal, about discrimination or harassment
• Participating in an investigation or lawsuit
• Requesting a reasonable accommodation for a disability or religious practice
• Reporting wage and hour violations or unsafe working conditions
• Opposing discriminatory practices in any reasonable manner

A prohibited “adverse action” can be anything that might deter someone from engaging in protected activity. While termination is the most obvious, it doesn’t stop there. Demotions, unwarranted poor performance reviews, exclusion from key meetings, shift reassignments, and even subtle behavioral changes by supervisors can cross the line.

Again, even the most well-intentioned employers can mishandle these issues. While each situation is different, here are a few recommendations on how employers can stay on the right side of the law:

1. Educate managers. Supervisors should understand what protected activity looks like and how retaliation can occur—even unintentionally. Poor communication, icy treatment, or sudden changes in job duties can all be problematic. Consider providing separate anti-harassment and non-discrimination training to managers with a focus on retaliation-related issues. Let managers know that it’s okay to feel hurt, but part of their job is to react in a professional and legally compliant way.
2. Centralize and professionalize the complaint process. Route complaints and accommodation requests through HR or legal to ensure consistent treatment. That helps prevent front-line managers from reacting emotionally or impulsively. When complaints arise, thank employees for raising concerns, even if they feel uncomfortable. Showing respect, transparency, and an eagerness to investigate can diffuse tension and demonstrate good faith (and reduce future retaliation claims).
3. Document decisions. If you’re planning disciplinary action or a change in duties, keep clear records of the legitimate business reasoning behind the decision which show it was made independently of any protected activity.
4. Think twice (with HR or legal) before making final decisions. After an employee files a complaint or request, review any planned changes or evaluations carefully. This does not mean that you are prohibited from taking necessary actions, but you should consult with experts about how such decisions should be communicated, how they might be perceived, and how you can limit legal risk.
5. Follow up with affected employees. After any internal complaint or external charge, make sure to follow up with the complaining employee to see how they are doing and ensure that they are feeling okay. Also, if applicable, follow up with the manager and do the same thing.

Retaliation claims aren’t just about hurt feelings or workplace drama. Handled incorrectly, they can lead to serious legal consequences. Employers need to be proactive, not reactive, when handling employee complaints or accommodation requests. That means clear processes, thoughtful communication, and consistent oversight.

Protecting employees from retaliation isn’t just the law — it’s smart management. And good for business. When workers trust they can speak up without fear, everyone benefits: morale improves, risks diminish, and your workplace becomes a place where legal compliance and positive culture can coexist.

Ben Mudrick is a partner and leader of the Labor & Employment practice at Harter Secrest & Emery LLP.  He can be reached at [email protected].