Thou Shall Not Retaliate

Fed up with off-color jokes and sexually offensive behavior in the office of the mid-sized waste management firm where she worked, Maria Blake (not her real name) finally mustered the courage to meet with her supervisor and tell him that he needed to crack down on what passed for acceptable workplace conversation.

He listened as she recited the incidents that troubled her most: daily jokes and comments that demeaned women, and an atmosphere in which some men felt free to touch female co-workers as they pleased. The supervisor appeared to take notes as she spoke, and he asked her about a few individuals in particular. Their conversation ended with his promise to bring up her concerns at his next meeting with senior executives.

Blake hoped that management would show signs that it understood the situation and found it intolerable by, for example, implementing some kind of sensitivity training for staff and managers. She didn't expect the goings-on in the office to change overnight. But, neither did she expect what happened a week later — she was transferred to another office and, as she saw it, was given less important duties. Not only was it a longer commute from her home, but, to make matters worse, she soon discovered that some of the men at the new place behaved about as badly as her former co-workers.

Utterly frustrated, she filed a complaint with the federal Equal Employment Opportunity Commission (EEOC), alleging unlawful retaliation by the company for her charges of sexual harassment in the office. The EEOC reports that retaliation allegations have soared over the past decade and now account for nearly one-third of the agency's caseload.

In April, the U.S. Supreme Court heard arguments on the issue of how managers may respond after an employee complains about harassment or discrimination. No matter how the high court rules, employment law specialists predict that retaliation claims will continue full throttle. One thing on which the experts agree: Zero-tolerance policies, meaningful training and attentive follow-up will diminish the chances that an employee will file, not to mention win, a retaliation claim.

First and foremost, companies need tough anti-harassment and anti-discrimination policies. Still, from time to time, someone is going to break the rules. When sexual harassment claims arise, senior management must be unmistakably vigilant in ensuring that the company's response in no way smacks of retaliation.

An employer should carefully investigate the underlying charges. If the allegations are substantiated, then the perpetrator must be disciplined or fired, depending on what the case may be.

Equally important, management needs to stay in touch with the victim. Allow no moves, transfers or shifting of duties without the employee acquiescing in the change. Sometimes, an employee might want to keep her same job. Whether the victim stays put or takes a new position in the company, it is important to check with the employee periodically for several months to assure that no retaliation or other adverse circumstances have taken place.

Taking such steps ensures that a company is both being fair to its employees and protecting itself as thoroughly as possible from retaliation liability.
Barry Shanoff
Legal Editor
Rockville, Md.