Rising Retaliation Claims Reveal Need for Improved Employer Termination Procedures

Author: Michael C. Jacobson, XpertHR Legal Editor

According to the Equal Employment Opportunity Commission (EEOC), retaliation claims rose again in fiscal year 2012, the sixth year in a row. Given the costly and time-consuming nature of an EEOC investigation and lawsuit, employers may be left wondering how they can reduce retaliation claims and limit financial exposure.

Interestingly, many attorneys tie the rise in retaliation claims to the Supreme Court's 2006 decision, Burlington Northern & Santa Fe Railway Co. v. White, +126 S. Ct. 2405 (2006), which lowered the threshold of proof for retaliation claims. Prior to the Northern decision, employees had to demonstrate that the employer's retaliation "materially and adversely affected" the employee's terms or conditions of employment. After the decision, employees merely had to demonstrate that the employer's action would dissuade a reasonable person from making or supporting a discrimination charge.

Despite this lower threshold, however, employers can still take action to reduce retaliation claims by current or former employees. At a minimum, employers should enact detailed policies and procedures for handling claims of unlawful or unethical activities in the workplace. They should encourage "whistleblower" activity, given its usefulness in shoring up problematic employment practices, and should be proactive in ensuring that whistleblowers do not feel alienated or targeted by reprisals. They should investigate such claims immediately and impartially and should take prompt and effective remedial action if applicable.

In many cases, employer can lay the groundwork for a lawful termination long before an employee complains of unlawful or unethical practices in the workplace, particularly if the complaint itself is frivolous and intended to dissuade the employer from taking an adverse employment action. Specifically, employers can:

• Conduct frequent performance appraisals and create appropriate documentation;
• Notify employees of workplace policies and of their employment status periodically;
• Utilize progressive discipline, striving for fairness and consistency in adverse employment decisions; and
• Conduct effective exit interviews.

When conflict is unavoidable, employers should offer employees valuable consideration in exchange for releases of claims or offer alternative dispute resolution methods to resolve potential lawsuits.

XpertHR is offering a free webinar on that can assist employers in reducing retaliation claims, Fire an Employee Without Getting Burned, as part of the HR.com Legal and Compliance: Managing Employer Risk virtual conference, on February 14, 2013, at 11:00 a.m. Eastern Standard Time.

Additional Resources

EEOC Statistics Show Retaliation Still Top Workplace Concern

Employee Management > EEO - Discrimination

Employee Management > Employee Discipline > Whistleblower Protections

Retaliation - Supervisor Briefing