Preventing Workplace Harassment, Discrimination, and Retaliation

tends to give high ratings for average work, the supervisor or employer should not suddenly start giving an employee who complains average ratings for the same average work.

C. D ISCIPLINE As a general matter, all employees should receive the same level of discipline for the same offense (taking into consideration each employee’s unique history of performance and discipline in assessing the seriousness of the conduct at issue). Applying discipline that is supportable by past practice is especially important where the employee has recently engaged in a protected activity. Therefore, if an employee who engaged in protected activity thereafter engages in misconduct, the employer should impose discipline only if it is consistent with past practice regarding the same or similar misconduct. If the misconduct is extreme or unprecedented, discipline should still be imposed, despite the risk of a retaliation claim, because the severity of the misconduct is likely to demonstrate to a court that the employer had a reasonable business motive to impose the discipline.

Some additional factors to consider before proceeding with any disciplinary action:  Have you adequately documented the underlying action in which the discipline is based?  Is the discipline comparable to other forms of discipline imposed on other employees for similar infractions?  Are you aware of any complaints, formal or informal, lodged by the affected employee regarding any workplace issues? Or, has the affected employee participated in any litigation against the agency in the form of testifying or cooperating with the adverse party?  If you are aware of such complaints, have these complaints been investigated?  Have you or any other managerial employee made any “stray comments” about the employee’s complaints or participation in the protected activity?  Are you aware of any threats of reprisals made against the affected employee for participating in the protected activity? If you are concerned about any of the above issues, you should consult your human resources director or an employment attorney to minimize any potential claims of retaliation.

LCW Practice Advisor

Preventing Workplace Harassment, Discrimination, and Retaliation ©2019 (s) Liebert Cassidy Whitmore 43