How can my company avoid retaliation claims after an employee reports harassment?

One must-have is fighting retaliation.

Nobody retaliates accidentally. You retaliate on purpose. You make a conscious decision, not a habit. This means that it’s really easy to avoid retaliating.

Just don’t decide to. Don’t do it. It’s that easy.

Dream on. Employers can end up on the wrong end of a retaliation case not because they set out to retaliate, but because they’re careless. When hit with an accusation of discrimination or harassment, bosses have four instinctive reactions.

Resentment

First, there’s resentment. When an employee complains, many managers feel that the complaint is a criticism of their judgment, or of them personally. HR and employment lawyers know employees have a legal right to complain and so they don’t take it personally. In fact, it’s much better for HR to be the one employees go to when they have a problem or a complaint, rather than the EEOC or a plaintiff’s lawyer.

You don’t take complaints personally. You’re too sophisticated for that. But not everyone on your staff is as mature or enlightened.

Sometimes coworkers will resent a coworker who complains, because they feel attacked. They may think the complaint is unreasonable, unfair, or untrue. They may blame the complainant for ending the fun loose atmosphere and stirring up trouble.

That’s why you have to nip coworkers’ resentment in the bud before they react.

You should cover retaliation in your regular preventive EEO and harassment training. (You do that regularly, don’t you?) You should teach your staff that it’s illegal to retaliate.

To avoid creating an impression that retaliation is the logical response to a complaint of harassment or other discrimination, you should end every interview you conduct, especially when you’re investigating a complaint, with a stern warning against retaliation. You should be blunt with the accused harasser, supervisors and managers. Now maybe a witness isn’t as vulnerable, but it’s still essential that the complaining employee is treated normally.

For many people, it helps to spell out specifics, like “say hello and goodbye.” Or, “if you run into someone, be courteous.” Or “be sure that you actually do interact with people enough to get your work done.” And if you’re still friends, the situation might be awkward, but that friendship should continue. Treat the complainant the same as everyone else when you decide which coworkers to invite to office-wide parties. Finally, if you’re struggling, vent privately–ideally to your family–and never to anyone at work except a lawyer.

Avoidance, Scrutiny, and Explosion

The second reaction is avoidance. Most folks won’t plant tacks on her chair or her stapler in jello. But many go the other direction: instead they avoid the complainant like the plague. Avoidance is generally not malicious, it’s just dread of saying or doing something wrong. A lot of supervisors are afraid they’ll say or do something that will make the situation worse.

Here’s an example. Let’s say Jan complains about her male boss’s sexual harassment. After the complaint her supervisor gives her no assignments and no feedback. Jan is bored, and passes her days on puzzles, cat videos, personal calls, and filing her nails. And gosh, she meets all expectations, right?

Sadly, avoidance can go wrong two ways. Jan may figure out that sitting idle puts her job at risk and decide the lack of work is retaliation. But there’s a second possible effect of avoidance.

The right answer is to treat Jan normally. Give Jan all of the usual projects, even the unpleasant ones, and any constructive criticism she may need. That’s what would have happened if there hadn’t been a complaint. Hopefully that ends the supervisor’s fear of a second complaint. It probably takes the edge off coworkers’ resentment. And it reassures Jan that she’s OK.

The third reaction is scrutiny. That’s less common than avoidance, but not rare. Say Jenny’s been coming in five minutes late her whole 20 year career, and nobody thought it worth mentioning, until the boss learns that Jenny has complained. Now Jenny is dogged by questions about her hours, and poor timekeeping is written up.

If you suddenly start policing her old habits after she complains, you may have a retaliation problem.

Yes, you may tighten up on rules, as long as you announce the change well ahead of time and enforce it on everyone equally. By telling everyone ahead of time that the rules have been tightened up you’ll go a long way to showing that any change is not because she complained.

Finally, there’s the explosion. This one often comes after a protracted period of avoidance. If like Jan she has nothing to do, boredom may make her lazy, entitled, and awkward–a combination coworkers resent. Let’s say her manager overreacts, lets his pent up annoyance come out in a big dose, and yells at Jan, in the heat of the moment. It’s only human, especially if avoidance has added too many irritations to the mix, but it adds trouble.

It’s predictable. Not really retaliation, but try proving that.

A lawsuit isn’t a fifth reaction, but it’s the frequent result of all four.