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Preventing Employment Law Retaliation Claims: Strategies for Employers

Retaliation claims in employment law have become increasingly prevalent in today’s workforce. As employers strive to create fair and inclusive workplaces, understanding retaliation is crucial for both employers and employees. This blog aims to shed light on the concept of retaliation, its legal implications, and employer strategies to avoid these claims.

Retaliation occurs when an employer takes adverse action against an employee for engaging in a protected activity. Protected activities can include filing a complaint about workplace discrimination or harassment, participating in an investigation, or simply asserting an employee’s rights. Adverse actions include termination, demotion, refusal to promote, decreasing compensation or refusing to increase compensation, and more subtle forms of mistreatment that make the work environment hostile like negative employment evaluations or increased, disproportionate scrutiny.

Federal and state laws protect employees from retaliation.  Federal laws include Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Occupational Safety and Health Act (OSHA).  The primary Pennsylvania state law is the Pennsylvania Human Relations Act. These laws aim to foster a workplace where employees feel secure in reporting wrongdoing without fear of reprisal.  These laws are enforced by federal and state agencies.  The primary agencies enforcing retaliation claims are the Equal Employment Opportunity Commission (EEOC) and the Pennsylvania Human Relations Commission (PHRC).
Employers can take proactive steps to prevent retaliation claims by:

  1. Establishing Clear Policies: Clearly communicate anti-retaliation policies to employees, emphasizing the organization’s commitment to a respectful and inclusive workplace.
  2. Training Managers and Employees: Provide training to both managers and employees on recognizing and preventing retaliation, fostering a culture of openness and accountability.
  3. Encouraging Reporting: Create avenues for employees to report concerns without fear of retaliation, ensuring confidentiality and a swift, unbiased investigation process.
  4.  Practicing Good Documentation: Ensure that disciplinary or performance issues that occur outside of any protected activity are well-documented so that proper disciplinary action is justifiable in litigation and not found to be retaliation.

Retaliation claims pose significant challenges for both employers and employees. Employers should prioritize creating a culture that encourages reporting and discourages any form of retaliation through fostering a work environment where employees feel secure in asserting their rights. With knowledge and diligence, employers can foster a fair and inclusive work environment.

Stock and Leader will include a session on retaliation claims and strategies for avoiding them in our next Employment Law seminar on February 29.  The seminar session will explore the topic in depth, with explanations and examples of retaliation claims, including those claims where employees succeeded, and those where the employer was successful in defending against the claims.

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