by According to the Equal Employment Opportunity Commission, 55 percent of all discrimination charges filed in 2020 included a claim of retaliation. To establish an initial claim of unlawful retaliation, the employee must provide evidence that they had engaged in a legally protected activity such as making a complaint regarding discriminatory practices or participating in an investigation regarding discrimination or equal pay matters and show that they received some adverse employment impact as a result such as termination, demotion, or other impact. In the upper Midwest, only Iowa and Wisconsin had lower than national average percentages of retaliation claims (50.7 percent for Iowa and 46.5 percent for Wisconsin.) On the other hand, North Dakota, South Dakota, and Minnesota all had significantly higher than national average percentages of retaliation claims (North Dakota 70.8 percent; South Dakota 62.7 percent; and Minnesota 66.4 percent.) Retaliation claims can also be made regarding legally protected activities such as taking state or federally protected leaves or making complaints regarding working conditions or pay.
If the employee presents some kind of connection between their protected activity and the adverse employment action they received (e.g., the adverse action took place close in time to the protected activity), it will be up to the employer to show it had a legitimate, nondiscriminatory reason for the adverse action. This can be by showing consistency between the action taken regarding this employee and past practices. The employer will be asked whether similarly situated employees were treated the same way as the employee making the claim. If there is a difference in treatment, what is the nondiscriminatory business reason for the difference? Contemporaneous business records that support the business reason for the action are also important.
Good defense against a claim of retaliation requires clear and consistent documentation. Accurate and credible records of employee coaching, performance management, investigations, and corrective actions can make the difference between whether the employer’s defense against a retaliation claim is successful or not.
Resource: For information on improving the quality of workplace documentation, see A.C.E Your Documentation: The Professional’s Guide to Accurate, Credible, and Effective Workplace Documentation, by Judith Cummings (2021). Available on Amazon for $11.95. It includes guidelines on how to include information in the documentation that demonstrates accuracy and establishes credibility. Checklists, forms, and examples of frequently needed documentation are included.
