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Employers often can head off retaliation claims by training managers to proceed cautiously in employment decisions involving employees who have filed discrimination complaints, observers say.
If practical, they advise leaving at least several months between the time a discrimination claim is made and taking any negative employment action.
Training is important, say experts. Employers “should just pound it into the heads of every manager” that retaliation is forbidden, said plaintiff attorney Frederick M. Gittes, principal at The Gittes Law Group L.L.C. in Columbus, Ohio. “You just don't do it.”
Good record-keeping also is important, said Mr. Gittes. Reports, if possible, should be progressive in indicating a problem employee. “It's always suspicious” when you go from reporting a positive job performance to suddenly suspending or firing the employee, he said.
Many observers also recommend that managers be told when an employee has filed a discrimination charge so they can make a point of avoiding any appearance of retaliation.
Diana L. Hoover, a partner with law firm Hoover Kernell L.L.P. in Houston, said she recommends, once the manager is informed, that any subsequent job action by the manager after a discrimination charge, including shift or job changes, have a supervisor's approval.
Human resources and legal departments “must be kept in the loop” on all decisions “and make sure it's being handled neutrally,” said Martha J. Zackin, of counsel at Boston-based Mintz, Levin, Cohn, Ferris, Glovsky & Popeo P.C.
For instance, when it is learned someone has made a complaint, “the employer treats the employee with kid gloves, and the person doesn't perform...and that doesn't work for anybody, either,” with other employees becoming upset about the worker not pulling his or her weight, Ms. Zackin said.
Richard D. Tuschman, a partner with law firm Duane Morris L.L.P. in Miami, said that when an employer is considering terminating an employee, it often is safer “to pull the trigger now rather than to wait.” That is because the employee may learn his or her employment is in jeopardy, file a discrimination suit and, once the firing takes place, claim retaliation.
“The timing of the termination on the heels of the discrimination complaint is going to look, on its face, suspicious. The employer is going to have to explain that its decision was not retaliatory,” Mr. Tuschman said.
Employers should avoid following a discrimination charge too closely with anything that could be perceived as retaliation, observers say. Kristan Peters-Hamlin, managing partner with law firm Peters Hamlin L.L.C. in Stamford, Conn., said. On average, courts seem to hold that six to nine months “is an adequate time period to rebut a resumption of retaliation.”
However, “you can't let the tail wag the dog,” and fear of a retaliation claim should not interfere with an employer's ability to run its business, so long as the decision to discipline or terminate “is made in good faith and for a lawful reason,” said Philip M. Berkowitz, a shareholder in law firm Littler Mendelson P.C. in New York.