“Retaliation is related to nature and instinct, not to law. Law, by definition, cannot obey the same rules as nature.” – Albert Camus

To retaliate is to be human. If accused of wrongdoing, a natural response is to want to try to get even. And businesses take discrimination allegations very seriously. It is akin to being called a bigot. Thus, if an employee accuses you of discrimination, the natural reaction is to do something about that employee. That “something” may be termination, demotion or just some other action that will make that employee’s life miserable. However, know this: According to the Equal Employment Opportunity Commission’s latest case-filing statistics, 36 percent of all discrimination charges filed last year contained an allegation of retaliation. This natural reaction also may explain why employers often lose a retaliation claim, even if they win on the primary discrimination claim.

The Supreme Court’s expansion of retaliation in Burlington Northern & Santa Fe Railroad v. White expanded the types of job actions that qualify as actionable retaliation. Retaliation is no longer limited to a tangible adverse action such as a termination, demotion or pay reduction. Instead, any employment action that could reasonably dissuade an employee from making or supporting a charge of discrimination can support a claim of retaliation. Pretty much anything other than “petty slights and minor annoyance” qualifies as retaliatory, including:

• Changing an employee’s schedule
• Excluding an employee from meetings or lunches
• Denying a leave of absence or other time off
• Transferring an employee to another location
• Altering responsibilities
• Questioning or interrogation
• Increased “monitoring” of an employee’s performance
• Papering an employee’s personnel file
• Giving poor references
• Filing criminal charges
• Filing a lawsuit against the employee or a counterclaim in a lawsuit brought by the employee

Six Steps for Your Law Firm

Given that virtually anything negative can qualify as retaliatory, what steps can your law firm take to limit potential liability for retaliation?

1. Lawyer training is essential. Attorneys can avoid retaliation only if they are educated about what it is and what forms it can take. Firms should conduct annual anti-harassment and retaliation training, with the lawyers receiving training separately from the rank-and-file.

2. Follow-through requires some handholding. Training does not only occur once per year. Proactive companies with strong HR practices make training a daily occurrence. Once an employee engages in protected activity, focus your efforts on making sure that everyone above that employee in the chain of command knows that the employee must be treated fairly and without even a whiff of retaliation.

3. Institute an effective anti-retaliation policy. The employee handbook is always “Exhibit 1” in any employment dispute. There should be no doubt to any judge or jury that your firm’s policy absolutely prohibits retaliation. But a policy is only as good as the paper it is written on. For example, there must be an effective egress for complaints, and all complaints should be investigated and documented, no matter how frivolous they appear. All witnesses identified by the complaining employee should be interviewed and advised that it is a terminable offense to retaliate in any manner because they have been named in an investigation.

4. Every detail counts. Trifling workplace matters generally do not suffice to carry a retaliation claim. Be that as it may, in employment cases, perception—by both the judge and the jury—is everything. An employee being excluded from a bowling league, in and of itself, will not get a retaliation plaintiff past summary judgment. However, when that exclusion is coupled with other adverse actions—transfers, demotions or public scoldings, for example—a retaliation plaintiff can begin to build a persuasive case of ostracism. The bowling league may not seem like a big deal to you, but to a group of jurors, it may be a pivotal fact that sways their judgment.

5. Be decisive. Managers and supervisors who retaliate have no place in your organization. You want to be able to demonstrate to a judge or jury that your organization does not tolerate retaliation, even if a rogue manager or supervisor may have sinned once.

6. The complaint does not bulletproof the employee. Many employees mistakenly believe that their jobs are protected simply because they complain about discrimination. To the contrary, employees who complain or engage in other protected activity can be disciplined for performance failures and even terminated, provided an adverse action is taken with caution and with an understanding that it may later be scrutinized in court. Documentation of the employee’s performance failures or discipline problems must be exact. And merely because the employee is going to be fired does not mean that you can ignore the discrimination complaint—a full investigation still must be completed.

Retaliation claims are among the biggest risks facing employers in every industry, and law firms are not immune. It is the quickest way to turn to a defensible employment claim into a liability problem. It is incumbent upon everyone in your organization to take personal responsibility to suppress the natural urge to retaliate, and incumbent upon every firm to educate lawyers and staff about this critical responsibility.