Employer Retaliation – Part 5: Common Employer Missteps That Can Increase the Risk of Retaliation Claims
Even the most diligent employers cannot completely eliminate the risk of employment claims. But certain decisions and actions can significantly increase the likelihood of lawsuits and improve a plaintiff’s chances of success. This is especially true when it comes to retaliation claims.
As discussed in previous posts in this series, prohibited retaliation occurs when an employer takes adverse action against an employee for engaging in protected activity, such as reporting discrimination, filing a workplace complaint, or participating in an investigation. While most employers don’t intentionally retaliate, common mistakes-whether stemming from carelessness, unfamiliarity with the law, or systemic gaps-can result in significant legal, financial, and reputational consequences. Understanding these pitfalls is essential for any organization committed to minimizing risk. Below are five of the most frequent missteps that expose employers to retaliation liability.
- Failing To Recognize Protected Activity
One of the most fundamental mistakes employers make is failing to recognize what constitutes protected activity. Employees are legally protected when they report harassment, discrimination, safety violations, or wage and hour concerns, or participate in investigations related to these matters. Protection also extends to employees who request reasonable accommodations for disabilities or religious practices, take legally protected leave, or engage in other activities safeguarded by federal and state employment laws.
Some protected activities are obvious and less likely to lead to managerial retaliation mistakes, such as formal external or internal complaints or exercising leave rights. But the more subtle types of protected activities are where things often go off the rails. Consider this scenario: an employee informally mentions concerns about discriminatory treatment to their supervisor. When that employee later receives a poor performance review, the timing and circumstances can create a strong inference of retaliation, even if the manager thought they were simply addressing legitimate performance issues. This is why it is critical to train management teams to recognize protected activity in all its forms, including informal complaints and concerns raised casually in conversation.
- Acting Too Quickly After a Complaint
Timing may not be everything in retaliation cases, but it matters a lot. When an adverse employment action occurs shortly after an employee engages in protected activity, it raises a red flag that judges and juries cannot easily ignore. In fact, temporal proximity between protected activity and adverse action is often one of the strongest pieces of evidence plaintiffs can present.
There is no magic formula for determining how close is too close. But consider: if an employee engages in protected activity on Friday and is terminated the following Monday, the optics are far worse than if the termination occurred months later. While timing alone is rarely sufficient to prevail at trial, it can be enough to survive early dismissal, keeping the plaintiff’s claims alive and the employer on defense.
Even when legitimate, performance-based reasons for adverse action exist, management should proceed with caution. Before acting against an employee who has recently engaged in protected activity, document the decision-making process thoroughly, ensure the action is consistent with how the company has treated other employees in similar situations, and consider consulting with legal counsel before taking any action against the employee.
- Inconsistent Application of Policies
Inconsistent policy enforcement is a red flag in any employment dispute, but it’s particularly damaging in retaliation cases. When an employer treats an employee who has complained about discrimination more harshly than others who engaged in similar conduct, it strongly suggests the real motivation wasn’t the policy violation but rather the protected activity.
To avoid this mistake, ensure that disciplinary actions align with established practices and past precedent. Before disciplining an employee who has recently engaged in protected activity, review how similar situations with other employees were handled. Any deviation from the standard approach should have a clear, documented justification that has nothing to do with the protected activity.
- Poor Documentation
Documentation can make or break a retaliation defense. Inadequate or suspiciously timed documentation can doom an employer’s case. A common scenario: after an employee complains about discrimination or harassment, a manager suddenly starts documenting performance issues, despite having no prior paper trail. This retroactive effort to “paper the file” looks exactly like what it often is: retaliation.
On the flip side, failing to document legitimate performance issues as they occur creates its own problems. Without contemporaneous documentation, an employer may struggle to prove that adverse actions were based on legitimate, non-retaliatory reasons.
The solution: document performance issues and policy violations consistently, fairly, and in real time for all employees, regardless of whether they’ve engaged in protected activity.
- Retaliating Against Third Parties
A particularly insidious and damaging mistake is retaliating against employees who haven’t personally engaged in protected activity but are associated with someone who has. For example, terminating an employee whose spouse filed a discrimination charge, or taking adverse action against someone who served as a witness in a harassment investigation. Such “third-party retaliation” can expose employers to significant liability.
These are just some of the ways employers can inadvertently increase their exposure to retaliation claims. If you have questions or concerns about taking action against an employee who may have recently engaged in protected activity, or if you want to strengthen your organization’s policies and training, please contact Breanne Gilliam at Maddin Hauser.