Addressing retaliation in the workplace

Earlier this year the United States Supreme Court ruled that when an employee filed sex discrimination charges against her employer, the employer could not retaliate against her by firing her fiance.  The precedent will certainly deter employers from terminating or harassing family members as a means of retaliating against an employee for challenging the employer or a specific supervisor.

In a related analysis, Equal Employment Opportunity Commission statistics reveal that retaliation claims have increased at an alarming rate from 21,613 in 2001 to 36,258 in 2010.  There is unfortunately too much retaliation in the typical workplace.

For tribal employers the decision has relevance since family members work together and sometimes the fate of a niece may be impacted by the behavior of her uncle.  The court decision and the above referenced statistics are a reminder for all employers to take retaliation seriously.  Employers seeking to limit retaliation in the workplace should (1) clearly define a policy which prohibits retaliation (2) train employees to remove retaliation from the workplace (3) scrutinize supervisor conduct for evidence of retaliation and (4) enforce the retaliation policy.  Of those four suggestions, the third deserves additional analysis which generates the question: What signals exist in the workplace which evidence retaliation?

The most obvious signal is a supervisor who tells you he is retaliating.  To get a supervisor to admit to retaliation, you must first ask for a justification for the employment related decision.  An outright admission is rare therefore more subtle behavior must be scrutinized in determining whether retaliation is part of your workplace.  Those subtle signals of retaliation may include:

1.  A decision to discipline which is close in time to an employee raising a protected complaint about the supervisor or the workplace.  A protected complaint for example includes sexual harassment and an unprotected complaint includes whining about getting up early to timely report to work.

2.  The supervisor departs from normal practices in dealing with the employee who has raised a complaint.

3.  The supervisor changes explanations or justifications for disciplining an employee.

4.  There is a pattern of adverse actions taken by a supervisor against employees who raise workplace concerns.

5.  There is an absence of documentary support for adverse actions.

6.  The supervisor stops communicating with employees who raise workplace complaints.

Not one of these signals alone may be compelling evidence of retaliation, but evaluating these signals will help identify some of the subtle and not so subtle ways supervisors retaliate in the workplace.

Recommendation:  Define strong policy, train employees, scrutinize supervisor decisions and enforce the policy if retaliation is found.

About the Author:

Richard McGee is a lawyer in Minneapolis, Minnesota who focuses his practice on gaming, gaming regulation, tribal employment and litigation in tribal, state and federal courts.  Richard has the privilege of working with tribes and tribal organizations on Human Resources matters including training.  Additionally, tribes ask Richard to address specific topics while incorporating the tribe’s related laws and policies into the sessions.  This is an invitation to engage Richard to produce and facilitate training for your tribe.