If you are considering taking action against an employee, take a moment to consider if that action could be deemed unlawful retaliation. Employment laws prevent an employer from punishing workers (and even job applicants) for “protected activity” regarding certain rights. Before you act, make sure that you won’t end up in a retaliation pitfall.
What is a “protected activity?”
According to the U.S. Equal Employment Opportunity Commission (EEOC), protected activities may include:
- Filing a discrimination charge
- Taking part in a discrimination investigation or lawsuit
- Requesting accommodations for a disability or religion
- Reporting illegal activity or unsafe work conditions (whistleblowing)
- Filing a worker’s compensation claim
What are “retaliatory” actions?
The EEOC may take a dim view of any negative action against an employee if the employee in question made or participated in a recent discrimination complaint. The U.S. Supreme Court held that negative action includes anything that may deter an employee from filing a claim of discrimination, or even from supporting one. Common retaliation tactics include leaving the employee out or giving them the cold shoulder, demotions or pay cuts, relocating them to another office, threats and verbal or physical abuse by managers or co-workers.
What does this mean for you?
You may feel as though you can do nothing in this situation, but you can take positive steps. Work with human resources and your management team to make sure the company does not treat any employee differently because of their protected activity. Document all performance issues as you normally would, but do not single out only that employee. Even if you know that your actions are unrelated to the protected activity, you may need to convince a jury that your decision focused on performance issues alone. Criticizing their work more than other employees may turn out to be yet another pitfall.
Make sure everyone in your company has the right training on discrimination issues to show that you take these matters seriously. Treating everyone with fairness and respect will keep you out of the courtroom and out of the retaliation pitfalls.