What Are the Rules on Retaliation – Can I Discipline an Employee Who Has Previously Complained About Discrimination?
January 31, 2019 updated 3/5/19 | Mary Cushing Doherty | High Swartz Law Firm, Norristown PA
Being an employer requires multiple hats. Aside from day-to-day business operations and long-range planning, employers have to hire and fire employees, investigate workplace complaints, and discipline employees for improper actions. Throughout each of these tasks and others, it is critical to act consistently with state and federal labor and employment laws. Those who don’t follow the law will risk litigation.
Our lawyers are often asked about discrimination and retaliation – employers often wonder whether it is possible to can discipline an employee who has made a discrimination complaint, either formally or informally. The short answer is no – retaliation is prohibited under the law when an employee exercises a protected right.
Opposing an Act of Discrimination Complaint Is a Protected Activity
Employees have the right to a workplace that is free from discrimination. What’s more, if discrimination occurs, any employee affected by the discrimination, including an employee who merely witnesses the discrimination but is not a target of it, maintains the right to file a complaint with their employer, the state or local Human Relations Commission, or the federal Equal Employment Opportunity Commission (EEOC). The law protects those who file claims of discrimination against retaliation. But legal protections extend beyond those who file formal claims: even speaking out against discrimination at the workplace is a protected activity.
Employers Cannot Retaliate When Employees Exercise Protected Rights
Although continuing to employ someone who has made a discrimination complaint may be frustrating, especially if the complaint appears to be unfounded, an employer may not legally retaliate against the employee. Retaliation is prohibited under federal and state law, and includes the following actions:
- Demoting the employee;
- Reducing the employee’s pay;
- Terminating the employee;
- Increasing scrutiny of the employee;
- Denying the employee deserved opportunities;
- Making negative comments on an employee’s review;
- Harassing or threatening the employee; or
- Taking any other adverse action against the employee that is in retaliation to the employee’s filing of a discrimination complaint (or exercising another protected right).
What Happens If I Retaliate Against an Employee Who Filed a Discrimination Complaint?
If you retaliate against an employee who filed a discrimination complaint, you could be in hot water, legally speaking. If this is the case, or if you are being accused of retaliation, you should protect yourself by hiring an employment law attorney familiar with the defense of employers against employee claims. If you are found guilty of unlawful retaliation, you could face multiple consequences, including payment of compensatory and punitive damages to the employee. You may also be asked to pay the employee’s lawyers’ fees and court costs, and be required to pay a civil fine for the offense.
Building a Defense
The key to avoiding any litigation is to have a strategic plan in place, and to know the law as it pertains to discrimination and retaliation. If a complaint of discrimination is brought against you for unlawful retaliation, our lawyers can help. We can try to prove that any action taken against an employee was not related to the employee’s action of exercising a protected right. We can also help you to understand other options and defenses, and will work hard to protect your best interests.
Learn More About Retaliation and the Law
Understanding the law is the best way to address any employee disputes or litigation. If you have more questions about your rights as an employer, or what to do if an employee files a claim against you, call our employment law attorneys at the office of High Swartz LLP today for a consultation.