Retaliation claims are among the most common employment-related complaints. They occur when an employer takes adverse action against an employee for engaging in legally protected activity, such as filing a complaint, participating in an investigation, or reporting misconduct. To minimize legal risk and maintain a healthy workplace culture, HR professionals and managers must understand how to avoid both the appearance and reality of retaliation.
What Is Protected Activity?
Employees are protected from retaliation under numerous federal laws, including Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Family and Medical Leave Act (FMLA), and the Occupational Safety and Health Act (OSHA). Common protected activities include:
- Filing a complaint about harassment, discrimination, or wage violations
- Requesting a reasonable accommodation for a disability or religion
- Participating in an internal or external investigation
- Whistleblowing about safety concerns or illegal conduct
- Taking FMLA leave or military leave under USERRA
What Does Retaliation Look Like?
Sometimes, retaliation can be subtle—for example, if a manager enforces company policies unevenly or treats a reporting employee differently after a complaint is made. In other cases, the response may be more direct or punitive.
Examples of retaliatory actions can include:
- Issuing unjustified threats, warnings, or disciplinary actions
- Assigning lower performance ratings without cause
- Transferring the employee to a less favorable position, shift, or location
- Subjecting the employee to heightened scrutiny compared to peers, without a valid business reason
These actions can create a chilling effect on reporting misconduct and are prohibited under employment laws.
Best Practices for Managers and HR
1. Create a Culture of Open Communication
Encourage employees to speak up about concerns without fear. Reinforce that the organization takes complaints seriously and prohibits retaliation.
2. Train Supervisors and Managers
Ensure leaders understand what constitutes retaliation, including subtle actions like reduced hours, exclusion from meetings, or negative performance reviews post-complaint.
3. Document Everything
Maintain clear, factual records of employee performance and disciplinary actions. If adverse action is necessary after a complaint, ensure it’s based on documented, legitimate reasons.
4. Separate the Investigation from Disciplinary Decisions
Avoid real or perceived bias by having neutral HR personnel investigate complaints and involving multiple stakeholders in decisions.
5. Monitor the Workplace After a Complaint
Check in with employees who report concerns to ensure they are not being mistreated. Promptly address any signs of retaliation.
6. Implement Clear Policies
Have a written anti-retaliation policy in your employee handbook. Make it clear that retaliation will not be tolerated and outline how to report concerns.
By staying proactive, consistent, and transparent, employers can reduce retaliation risk while fostering a workplace of trust and legal compliance.
aHRrow can assist employers with training, investigation and writing clear policies against retaliation. Reach out today to engage an aHRrow team member.