Supreme Court to Hear Argument on Retaliation Today (and Workplace Investigations Tip #17)
The Supreme Court will hear oral argument today in the case of Plaintiff Sheila White and Burlington Northern Santa Fe Corp. Ms. White alleges that following her report of sexual harassment and the suspension of her supervisor as a result, she was reassigned to dirtier work on the tracks, even though her job classification stayed the same.
According to the EEOC, about 30% of all charges are retaliation claims. In fact, it is not uncommon for claimants to win on the retaliation charge after their underlying discrimination charge is dismissed. See my recent posts on this very subject here, here and here.
The question the Court will have to grapple with is helping us to understand what retaliation really is. In other words, when is a seemingly simple management decision (i.e. to reassign work or transfer an employee) just that and when is it retaliatory? We'll soon find out.
In the mean time, here are some suggestions that many organizations miss in their preventive practices:
1. Make sure your training deals specifically with the subject of retaliation - not a gloss over but in-depth discussion of what it is AND what managers and employees obligations are.
2. Make sure your policy deals with it specifically - again not a gloss over.
3. Make sure when you have completed an investigation, that you take further steps to a) follow up with the claimant to ascertain whether there is retaliations, AND, b) to observe subtle patterns of behavior in the workplace. The end of your investigation is not the end of your responsibilities.