Preventing Workplace Harassment, Discrimination, and Retaliation

right of free speech on a matter of public concern against the public employer’s right to the efficient functioning of government.

Example: A fire department violated the First Amendment by banning reading of Playboy magazine, even though the ban was instituted to avoid contentions of sexual harassment. 178

In addition, it is important for employers to document an employee’s misconduct or performance deficiencies carefully in order to successfully resist possible later challenges asserting unlawful discrimination.

A NTI -D ISCRIMINATION L AWS D O N OT I MMUNIZE E MPLOYEES FROM D ISCIPLINE W HEN W ARRANTED

Section 9

The tremendous growth in retaliation claims has left some supervisors afraid to discipline any employee who has, within recent memory, complained about anything. This dynamic not only chills legitimate and necessary employment actions, it encourages the filing of erroneous complaints. Some employees will lodge unfounded complaints so that they will have a “protected activity” to point to if they are ever subjected to an adverse employment action. The best defense against erroneous claims, as well as the fear of such claims, is to implement basic, good management practices. Supervisors who operate in a work environment where objectivity and consistency are the norm will be less intimidated by the fear of retaliation claims. This is because they will be more confident that they will be able to defend their employment decisions, if challenged. Thus, employers should institute policies, procedures, and training that encourages fair and consistent treatment of all employees and thorough documentation of employer actions. A. T REAT A LL S IMILARLY S ITUATED E MPLOYEES THE S AME If an employer treats its employees professionally, and applies the same standards, a retaliation claim will be difficult to prove. This is because the employer will be better positioned to rebut the claim of a causal link with a legitimate business reason for its actions. Thus, employers should administer both favorable and unfavorable treatment of its employees in a fair, objective, and consistent manner, regardless of whether an employee has engaged in protected activity. B. P ERFORMANCE E VALUATIONS Evaluations should be grounded in objective criteria such as the job description and annual goals and objectives. Further, they should include a written description explaining the areas of positive performance, areas that require improvement, and suggestions for how to improve. Employees should be rated similarly for the same quality of work. Similarly, each employee’s evaluations should reflect the application of consistent standards. For example, if a supervisor or employer

Preventing Workplace Harassment, Discrimination, and Retaliation ©2019 (s) Liebert Cassidy Whitmore 42