I have written about this topic before but thought it is worthwhile to address the issue again because I am seeing a disturbing uptick in these types of claims: Retaliation.
Too often, when a claim is filed by an employee, an employer becomes angry and wants to fight back and get revenge against the employee for asserting the legal claim. The temptation is real for many employers. They feel betrayed that an employee would accuse them of violating the law. It can get especially personal when an employee accuses an employer of engaging in wrongful discrimination. No one wants to be called a bigot or find themselves on the wrong end of any legal case. But an employer must fight the urge to engage in retaliatory action against an employee for exercising protected legal rights. Mounting a strong legal defense to a filed claim should always be the goal when faced with a legal claim. Retaliation of any kind should not be part of that strategy!
Just about all of the major federal and state anti-discrimination laws protect employees against retaliation in exercising rights vested under these laws. Whistleblower laws likewise provide protection against retaliation. So ironically do many employer policies themselves. Yet, employer retaliation happens. And when it does, it will often provide an employee with an even stronger legal claim than the one that was originally being pursued, which only makes it harder to mount a successful legal defense.
When I think of retaliation claims, I am reminded of what William Shakespeare once wrote in his play “Othello” about jealousy being “a green-eyed monster.” In the realm of labor and employment law, one can fittingly say the same thing about retaliation and its own resemblance to that same famous literary creature. Employers must fight the urge to succumb to the “green-eyed monster” of retaliation. Just as jealousy wreaks havoc in Othello’s life in the famous Shakespeare play, so can retaliation for an employer in its efforts to remain compliant with labor and employment laws.
Along with fighting that retaliation urge, employers should always ground their workplace decisions in legitimate (and well-documented) non-retaliatory reasons for any actions that you take against an employee. That way, you will always give yourself a strong viable defense to such allegations. Increasingly, I am seeing sophisticated employees when they know their employment time is short go on the aggressive and claim that the employer is doing something illegal in the hope that it will cause the employer to delay any adverse employment action against the employee. In those situations, it is more critical than ever that employers have a well-documented history of the employee’s performance problems to counter any contention that the action is occurring for a retaliatory reason.
The temporary taste of vengeance is fleeting, just ask Othello. Fight that temptation at all costs so you too do not become just another tragic figure like Othello! In the end, retaliation claims can ultimately cost your company a lot of money, so always make good employment decisions rooted in legitimate business reasons.
