What are the Legal Grounds for Retaliation?
What are the Elements of an Actionable Claim of Retaliation?
- "Opposition" claims are brought by individuals who claim they were retaliated against because they opposed a practice made unlawful by one of the aforementioned statutes. This type of claim does not require the filing or registering of a formal complaint.
- "Participation" claims are brought by individuals claiming retaliation for filing a charge of discrimination, testifying, assisting or participating in any manner in an investigation, proceeding or hearing under the applicable statute.
- Threatening to file a charge or other formal complaint alleging discrimination;
- Complaining to anyone about alleged discrimination against oneself or others;
- Refusing to obey an order because of a reasonable belief that it is discriminatory;
- Requesting reasonable accommodation for disability or religious belief.
The Wages of Sin: Remedies for Retaliation
- There is no evidence any adverse action resulted from the employee's opposition or participation.
- The employer was unaware of the employee's protected activities.
- The employee's claim does not state a cause of action for retaliation.
- Have a credible complaint procedure and promptly and thoroughly investigate all complaints. Assure the employee the complaint is being taken seriously and all efforts will be made to conduct the investigation promptly and discreetly.
- Be sensitive and thank the employee for the information provided. Remind the employee of the company's commitment to equal employment opportunity, and let the employee know he or she has done the right thing in coming forward.
- Assure employees that retaliation will not be tolerated. Ask the employee to report any further experiences or events resulting from the complaint or participation in the investigation.
- Put yourself in the employee's shoes. Bear in mind the employee may be more sensitive after lodging a complaint or participating in an investigation. Incidents of little consequence may appear retaliatory. Therefore, develop a sensitivity to subtle nuances and make a conscious effort to keep the employee involved in the everyday business of the workplace.