What Makes a Strong Retaliation Case?

Retaliation cases continue to make up the majority of charges filed with the Equal Employment Opportunity Commission (EEOC). These charges constituted 56% of all EEOC charges in 2021.

And while the total claims were fewer, Monetary Benefits didn’t drop. The plaintiffs took home a total of $220 million from retaliation claims alone.

Essentially, this means that these charges are becoming more expensive.

And it’s something that employers need to consider carefully — because landing in a costly settlement or lawsuit can significantly interrupt your cash flow, lower morale, stimulate employee churn, and harm the company’s brand reputation. It also creates a toxic workplace.

That said, workplace retaliation cases aren’t necessarily easy to win. To get a better idea of what constitutes retaliation, let’s look at a strong case.

What are the 3 things that make a strong retaliation case?

A strong retaliation case must show 3 things:

1. An employee faced discrimination or harassment in the workplace.
2. They reported the incident.
3. The employee was then fired, demoted, or otherwise punished for their complaint.

If an employee can show all 3 actions that occurred with hard evidence, such as reports, witness statements, emails, recordings, and similar items, then they may have a strong case.

Let’s take a look at a real case to see how this plays out.

In a recent court case, Harris v. FedEx Corporation, 4:21-cv-01651 (S.D. Texas, May 19, 2021), Jennifer Harris won $366 million in a racial discrimination and retaliation lawsuit again FedEx. Here’s what happened:

Jennifer Harris was a top performer when working for FedEx. Not only was she awarded the President’s Club twice, but she had positive evaluations and was promoted 6 times between 2007 and 2019.

However, on March 8, 2019, when her manager Michelle Lamb asked her to take a demotion, Harris filed an internal complaint regarding racism. After 2 months and outside company policy, she received a letter detailing her “unacceptable performance.”

In addition, her manager, Lamb, allegedly sabotaged Harris’ commission structures, belittled her in front of coworkers, and refused to assign her clients within her district.

When Harris, an African American woman, approached HR for racism against her by her White manager, they told her it would “blow over.”

Finally, Jennifer Harris was given a warning, despite her exceptional performance, and subsequently terminated.

The Plaintiff’s claim alleged that FedEx, despite being a worldwide company, failed to hire and train HR staff, managers, and other supervisors about racial discrimination.

There are a few different reasons why Harris’ case stands out:

• Her manager, Michelle Lamb, did not follow FedEx protocol by sending a Letter of Counseling. Managers must have a documented discussion regarding performance before this letter is sent.
• There is a clear paper trail of Harris’ positive performance, even while working under Lamb.
• Harris was openly belittled in front of her peers, creating witness testimony.
• They documented her complaint, but she received no support from HR.

A strong retaliation case is backed by substantial evidence. Jennifer Harris provided numerous instances of discrimination and linked it to her termination.

What counts as retaliation?

Workplace retaliation doesn’t just occur from reporting discrimination or harassment. A manager or supervisor can be accused of retaliation when punishing an employee for a protected activity.

Protected activities can mean:

• Reporting company policy violations
• Asking for earned overtime pay
• Whistleblowing
• Participating in an investigation
• Talking about or forming a union
• Taking leave under the Family and Medical Leave Act (FMLA)
• Filing for worker’s compensation

It’s important to note that in a retaliation case, whether or not someone discriminated against someone is not the key argument. The only thing that matters is finding out if someone fired or punished the employee for reporting an incident in good faith.

For example, even if there is no proof of sexual harassment or discrimination, the jury could still find an organization guilty of retaliation.

What evidence matters in a retaliation lawsuit?

There are many types of evidence that people can use in a retaliation lawsuit. An employee who is suing an employer for retaliation may have evidence showing discrimination and harassment and will connect that to their termination or demotion.

Some common types of evidence for retaliation claims are:

• Call and chat logs
• Company policies
• Emails
• Employee handbooks
• Employee performance reviews and history
• Letters
• Memos
• Personal notes and journal entries
• Text messages
• Witness testimony
• Videos
• Voicemails and recordings

What are common signs of retaliation in the workplace?

For the HR team, it’s essential to identify potential retaliation signs early. Some warning signs that a manager may be retaliating against an employee are:

• Demotions
• Badmouthing an employee in public
• Reassigning an employee to another department
• Reducing an employee’s hours without warning
• Not allowing an employee to change shifts
• Not allowing an employee to take time off
• Unfair performance reviews
• Interfering with internal promotions
• Blacklisting former employees
• Not inviting the employee to work events
• Excluding the employee from meetings
• Demoting, terminating, or reassigning the employee’s friends

How can employers prevent retaliation claims?

Human Resources is the first firewall against retaliation. Whenever possible, it’s better to prevent retaliation before it starts. And if you notice a problem, it’s essential to conduct an internal investigation and prevent it from becoming a serious issue.

It’s critical that the HR department has regular training to spot discriminatory characteristics and behaviors during hiring, onboarding, and throughout an employee’s career.

The good news is that there are action steps your HR team can take to reduce the likelihood of a retaliation incident:

• Draft a sound anti-retaliation policy
• Use examples of what not to do and offer suggestions
• Explain what actions are protected from retaliation
• Ensure every worker receives retaliation training when onboarded and promoted
• Document all retaliation claims well
• Set up a 3rd-party, anonymous hotline to receive complaints
• Provide guidance to managers and supervisors for handling interpersonal conflict without using retaliation
• Have an open door policy
• Map out a clear internal investigation roadmap for retaliation claims
• Be discreet and empathetic with employees when they come to HR with claims

Since retaliation often stems from punishing employees for good faith reporting, it’s also important to offer training and policies for managers and HR regarding:

• Diversity, equity, and inclusion (DEI)
• Discrimination
• Harassment
• Unionizing
• Civility and respect in the workplace
• When an employee is not obligated to listen to their supervisor

Human Resources is responsible for bringing new people into the organization, so it’s critical that the HR department has regular training to spot discriminatory characteristics and behaviors during hiring, onboarding, and throughout an employee’s career.

It’s essential to put a stop to toxic workplaces

Retaliation cases aren’t just an expensive settlement — a manager who retaliates against employees fosters a toxic work environment. As a result, the affected department or even the entire organization can begin to suffer from lower employee morale, broken trust, and reduced productivity.

And if word gets out, which it always does, customers may find alternatives.

The fact of the matter is that retaliation, discrimination, and hostile work environments are bad for business. Employees shouldn’t be punished for doing what’s right and informing the company of problems on the ground.

For HR managers, knowing how to deal with sexism, racism, and other social issues can open the door to better communication and conflict resolution. It can also help your team make better decisions with new hires and training.

Our guide to racism and social issues in the workplace dives deep into how your team can tackle injustice at work.