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Ways employers can defend against retaliation claims

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An adequate policy, detailed record-keeping and having someone objective to deal with the issue are among the strategies employers should deploy to avoid and defend retaliation claims.

“You can't prevent someone from bringing a claim,” but company executives can “manage the workplace in a way that creates the maximum defense,” said Gerald L. Maatman, a partner with Seyfarth Shaw L.L.P. in Chicago

Firms “need to have in place policies that prohibit retaliation and discrimination, and follow up on any claims of this nature,” said Philip M. Berkowitz, a shareholder at Littler Mendelson P.C. in New York

“Deal with (complaints) in a proactive way, and promptly root out any perceived wrongs,” said Christopher W. Olmsted, a shareholder with Barker Olmsted & Barnier A.P.L.C. in San Diego.

“Be consistent,” said plaintiff attorney Frederick M. Gittes, a principal at the Gittes Law Group L.L.C. in Columbus, Ohio. “You're asking for trouble” when one person is fired, but others who do the same thing are reprimanded or not disciplined at all, he said.

“Make sure that (human resources) is involved in the complaint process as quickly as possible” to monitor the situation, said Kelly H. Kolb, a shareholder at Fowler White Boggs P.A. in Fort Lauderdale, Fla.

It is a “fairly common and natural reaction to someone whose been accused of being a bigot, racist or misogynist to be fairly upset about it, and lashing out at the person who's accusing them,” Kolb said.

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“By involving HR in the process, then you've got somebody who's objective,” said Martha J. Zackin, of counsel at Mintz Levin Cohn Ferris Glovsky & Popeo P.C. in Boston.

Good training is important as well, said Patricia Eyres, an attorney with the Scottsdale, Ariz.-based Eyres Law Group L.L.P. “Most people who get into a supervisory position have been promoted because of good work and don't necessarily know the nuances of the law and the (company's) policies.”

Experts recommend that employers train managers to set aside the issue if they are accused of wrongdoing or, if feasible, do a transfer so someone else supervises the complaining worker.

“Having a clear record of alleged misconduct or performance shortcomings that connect the employee's conduct to the consequence, be it some sort of discipline up to and including termination,” is always important, Mr. Olmsted said.

“Unfortunately, a lot of supervisors are so busy managing work, they don't take the time to document effectively the performance or behavioral issues involved,” Ms. Eyers said.

Richard D. Tuschman, a shareholder with Akerman Senterfitt L.L.P. in Miami, recommended that an employer considering taking an adverse employment action document the activities through an email to precisely establish timing.

“You can't run away from making tough employment decisions just because someone has engaged in a protected activity, but...you need to be aware those decisions are potentially going to be scrutinized in a lot more detail, so you really need to make sure your T's are crossed and your I's are dotted,” said Michael W. Fox, a partner at Ogletree Deakins Nash Smoak & Stewart P.C. in Austin, Texas.