Texas Bar Today Top TenRetaliation charges are the most frequent type of employee compliant received by the Equal Employment Opportunity Commission (EEOC). Often, despite defeating baseless allegations of discrimination or harassment, employers still find themselves having to defend retaliation claims based upon actions taken towards the employee who made such allegations in the first place.

Companies should keep in mind that their reaction to and handling of employee complaints can make all the difference in avoiding a costly legal battle.

Title VII Prohibits Retaliation

In addition to prohibiting workplace discrimination based upon certain protected characteristics such as race, color, sex, national origin, and religion, Title VII of the Civil Rights Act of 1964 also prohibits retaliation against employees who complain about workplace discrimination, regardless of whether such complaint is justifiable.

Retaliation is any adverse employment action an employer takes against the complaining employee because of the fact that he or she complained. The U.S. Supreme Court has declared that any negative act towards the complaining employee can constitute retaliation if that action would be enough to dissuade a reasonable employee from making a complaint under similar circumstances.

Once an employer is put on notice of an employee’s complaint of unlawful harassment or discrimination (such as through an internal complaint procedure or by receiving a charge of discrimination from the EEOC), any punitive or retaliatory actions taken against that employee are unlawful. By simply voicing a complaint or opposing a discriminatory practice, that employee has engaged in “protected activity” under Title VII.

After this protected activity is triggered, employers must use caution when making any decisions that may negatively impact the complainant’s employment.

Examples of Retaliation

Pursuant to a consent decree entered into this past December, the Mexican food chain Chipotle is paying $95,000 to a former employee who claims he was locked in the store’s walk-in freezer and forced to escape via an emergency exit after reporting his manager for sexual harassment.

Besides this overt example of retaliatory conduct, other examples of adverse action that have been held retaliatory under Title VII include:

  • Terminating or demoting the employee,
  • Changing his or her job duties or work schedule,
  • Transferring the employee to another position or location,
  • Reducing his or her salary, and
  • Denying the employee a promotion or pay raise.

Response Matters

While the desire to seek revenge for perceived offenses is a common human reaction, allowing this impulse to control how the company reacts to employee complaints greatly increases an employer’s risk of liability for a retaliation claim.

Employers often react negatively to complaints they view as baseless or untrue. However, even once a workplace investigation is completed and a determination is made that there is no evidence to support the initial claim of workplace discrimination or harassment, that doesn’t free the employer from its obligation to not retaliate against the complaining employee. Under Title VII, even where the initial complaint lacks merit, an employer still may not take adverse employment action against a complaining employee simply because of the fact that he or she voiced a complaint.

Having an effective workplace investigation process in place for dealing with employee complaints can help avoid the natural “knee-jerk” reaction when the company is accused of unlawful behavior. Set guidelines via company policies, in addition to training of employees and supervisors on such policies and handling of employee complaints reduces the risk that impulse will take over by providing structure and setting expectations.

What Actions are Permitted?

Although it may seem as though any action taken towards an employee post-complaint is at risk of being perceived as “retaliatory,” employers are permitted to take adverse actions that are ground in a legitimate business purpose and unrelated to the fact that the employee complained.

For example, if a complainant employee’s job performance begins declining after he or she makes a complaint, the employer may still discipline that employee. However, such discipline should be in accordance with the employer’s handbook policies or procedures and carried out only after thorough documentation of the poor performance issue.

Timing is key here: the closer in time that an adverse action is taken to when an employee complains, the higher the risk of liability for a retaliation claim.

A Measured Response

Retaliation can be (and often is) more subtle than locking an employee in a freezer. However, this stark example illustrates the importance of reaction and proper handling of employee complaints.

Upon becoming aware of an employee complaint, the employer’s response should be focused on correcting the problem (if any) and future prevention of workplace discrimination and harassment. This should all be done while treating the complaining employee equally to all other employees and not punishing that employee for the allegations he or she asserted (even if those allegations are later found to be unjustified).

For assistance with workplace matters, contact Clouse Brown PLLC. Our attorneys are available to assist employers and business owners in dealing with employee complaints and providing advice on how to comply with both state and federal anti-discrimination and anti-retaliation laws.

Alyson Brown

About Alyson Brown

Alyson Brown represents employers and executives in all facets of the employment relationship. Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, Ms. Brown has tried cases in state and federal courts throughout Texas and in other states. She represents clients in a broad range of industries, including health care, banking, energy, high-tech, retail, manufacturing, hospitality, and nonprofit organizations. She can be reached at abrown@clousebrown.com.

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