Want to know why retaliation claims turn out so well, so often, for angry employees? Look no further than basic human psychology, says attorney Deborah S. Adams of Frost Brown Todd LLC: “Juries ‘get’ retaliation claims.” Most of us have never actually felt the full emotional brunt of an overt act of racial, sexual or age discrimination at work. But we can all quickly identify with the feeling of being persecuted for something we’ve said or done. That’s almost universal.
“The very nature of the word ‘retaliation’ suggests punishment,” Adams explains. And the feeling of being punished as an adult, suffering payback, is a guaranteed trigger for anger—even the secondhand anger of empathetic jurors.
No wonder plantiffs’ lawyers love these cases.
Adams offers these tips on how an organization can thwart becoming another dreaded statistic:
1. Make sure you have standalone retaliation policies set down on paper. Your temptation when crafting an employee handbook will be to just glom them onto your EEOC complaint procedure or your open-door policy. That’s not enough—use that paragraph break command in Word to separate and emphasize your strong stand in favor of your employees’ right to engage in protected activity. In your policy, make it clear to them that if they have a complaint, they should feel free to run, not walk, directly to HR.
2. Put all termination recommendations to the sniff test. If someone comes to you in a firing or disciplining mood, make them prove that there’s no retaliation going on here. Your first thought should be: How will this look to the outside world—to the average person on the street who probably feels like their own company is sometimes a bit adversarial to them? That average person is who winds up on a jury.
3. Instruct managers on how to suffocate their emotions. Retaliation is often a personal act. When we’re accused of wrongdoing, we tend to want to strike back quickly, and that’s when a manager might launch an adverse action and justify it by thinking, “Hey, you play with fire, you get burned.” Get everyone to take the Red Button Pledge: Make them envision all vindictive thoughts printed on one, a trap just waiting for the overly emotional to actually press it.
4. See email as a beast with fangs. “I find more documentary evidence of retaliation in people’s emails and texts than almost anywhere else,” Adams says. Sentences like “I can’t believe he’s still working here when he’s suing us” or “It would be a shame if she really started to hate her job” are completely obvious codes that will be quickly exposed.
5. Beware keywords like malcontent, pot-stirrer, ungrateful, disruptive and bad attitude. Let’s face it: Despite your best efforts, they’re going to be spoken behind closed doors. Just make sure that those who use them find that their next stop is your office, where they’ll be educated firmly in the stakes of this costly game.
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