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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As overtime lawsuits continue to surge, employers often try to defend themselves by pointing to their policy that says employees should have received management approval before working OT.
Bad news: Judges are dealing harshly with employers that try to rely solely on the “no-OT-without-approval” defense.
That’s because the Fair Labor Standards Act requires management—not employees—to make sure employees don’t work unpaid overtime hours.
According to the U.S. Department of Labor, “time spent doing work not requested by the employer, but still allowed, is generally hours worked.” And if nonexempt employees work—whether it’s authorized or not—you must pay them for their time.
Here’s how to stop abuse of unauthorized overtime:
1. Ensure all employees know they must obtain supervisor approval to work overtime. Don’t bury the rule deep within your handbook.
2. Develop checks to prevent off-the-clock work. Example: Insist all hourly employees clock in and out.
3. Adopt tracking measures, such as electronic entry cards, to back up reports of hours worked.
4. Institute progressive discipline for overtime violators. While you must pay for all hours worked (authorized or not), you can discipline rule-breakers.
More advice: While a no-OT-without-approval policy won’t insulate you from lawsuits, you should still be sure to include one in your employee handbook.
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Conducting workplace investigations is one of the most challenging and most important duties that HR professionals must take on. How you respond to complaints about harassment or other misconduct can have huge legal and practical implications for your organization.
Here are the 10 most common workplace investigation mistakes:
1. Ignoring complaints
Failing to take action on a complaint is one of the biggest mistakes employers can make. Choosing not to conduct an investigation after learning of allegedly inappropriate conduct may result in the company being legally responsible for harm caused to any employee, client or others due to the inappropriate conduct. Investigate regardless of how frivolous or unfounded the complaint appears, or who complained.
Note: Just because a complaint is anonymous does not excuse failure to investigate.
2. Not having a plan
Create a preliminary plan for the investigation so you understand the purpose of the investigation. Think about these five W’s:
3. Taking too long
Delaying the start of an investigation may lead to employer liability. Particularly in harassment and discrimination cases, deciding to wait to begin an investigation may be viewed as subjecting the employee to additional unlawful behavior.
Your timing goal: to strike a balance between adequately preparing for the investigation and avoiding unreasonably long delays.
4. Not training investigators
Poorly trained investigators can’t promptly respond to complaints, making the inquiry ineffective. Train several employees to conduct an impartial, professional and credible investigation.
Another option is to hire a trusted HR colleague or use in-house counsel or an outside attorney to conduct the investigation. No matter who you choose, making sure that the investigator is trained and able to begin the investigation promptly is key.
5. Accepting half-measures
Conducting a sloppy investigation by failing to interview necessary witnesses, failing to review relevant documents and ignoring potential issues that come up during the investigation can create just as much legal exposure as not doing an investigation at all.
6. Conducting unlawful searches
Searching an employee’s personal belongings or monitoring certain communications without consent can violate several federal and state laws. Avoid liability by informing employees of surveillance policies. Obtain their consent to monitor and access information on any devices employees use at work.
7. Interviewing too aggressively
Aggressive tactics may result in legal claims such as false imprisonment and coerced confessions. More practically, you risk dissuading employees from cooperating in the investigation, thus failing to understand what happened.
Advice: Conduct interviews in appropriate locations, outline questions in advance and use open-ended questions when possible, to get the entire story.
8. Promising confidentiality
Never promise an employee that his or her complaint will remain confidential. There will always be certain information that must be disclosed in order for a thorough investigation to be completed. You run the risk of a possible violation of federal labor law if you demand absolute confidentiality from the witnesses.
9. Failing to create a report
Document investigation processes and findings to support the company’s action regarding the allegations. Failing to document evidence, results of interviews and other relevant findings is just as bad as failing to conduct an investigation.
Prepare a report for every investigation. Include a summary of the matter; the identity of all parties and witnesses; a description of the documents, findings and credibility determinations; and recommended action.
10. Pulling punches at the end
Failing to reach a conclusion and take the necessary steps to address misconduct will ultimately expose the employer to legal liability. Once the report has been completed, a determination should be made regarding whether misconduct occurred and what appropriate actions should be taken.
Make sure the complainant does not suffer any adverse employment actions resulting from the determination unless you can prove that the allegations were made in bad faith.
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The legal and regulatory landscape surrounding workplace harassment is shifting rapidly, leaving many HR professionals wondering how to stay compliant while maintaining a fair and inclusive work environment. Karen M. Morinelli and Lara J. Peppard, attorneys at Ogletree Deakins, warn that with the recent changes to EEOC leadership, evolving interpretations of federal laws and new executive orders, HR teams must be prepared to endure heightened scrutiny and conflicting guidance.
The evolving legal framework
Recent updates to federal enforcement policies have created challenges and opportunities for HR professionals. The EEOC’s 2024 Enforcement Guidance on Harassment in the Workplace, passed by a narrow vote, expands protections against harassment, including provisions related to gender identity. However, the new acting chair, Andrea R. Lucas, has openly opposed these interpretations and initiated reviews to remove what she describes as “gender ideology” from EEOC materials.
Additionally, President Trump’s Executive Order 14168 directs federal agencies to define sex as immutable and binary, which could impact workplace policies related to gender identity and inclusion. Meanwhile, a federal court ruling has temporarily blocked efforts to dismantle diversity, equity and inclusion (DEI) programs, leaving employers in limbo over how to proceed.
For HR, the key takeaway is clear: Compliance with existing anti-discrimination laws remains essential, but policies may need to be revisited frequently as the legal landscape shifts.
Defining and addressing workplace harassment
While laws and interpretations may be changing, the core definition of workplace harassment remains consistent. Unwelcome conduct based on a protected characteristic—such as race, gender, sexual orientation, disability or age—crosses into unlawful harassment when it becomes severe or pervasive enough to create a hostile work environment or impact employment conditions.
Common examples include:
Virtual environments present new challenges, as conduct that may have been overlooked in traditional office settings—such as inappropriate comments in chat platforms or video calls—can now be documented and scrutinized. HR should ensure that remote work policies address online harassment with the same rigor as in-person interactions.
Next steps for HR teams
HR professionals must be proactive in adapting to these changes by:
Taking on workplace harassment policies in today’s uncertain climate requires HR professionals to remain vigilant, informed and adaptable. By taking decisive action now, organizations can protect employees, maintain compliance and uphold a fair workplace culture—no matter how the legal landscape shifts.
Supplemental materials for LEAP 2025 session Crafting Legally Compliant Job Descriptions
Job descriptions are the cornerstone of communication between management and staff. Good job descriptions make sure bosses and employees alike know what kind of performance is expected. They’re the basis of every effective performance-appraisal system.
Carefully drafted job descriptions can help you if an employee sues you. For example, a court considering an ADA lawsuit will review what the organization has identified as the job’s “essential functions” to see if the charges have merit. Without a written job description, the court may decide for itself which functions are essential.
Some job descriptions can be brief; others might require several pages. At a minimum, a job description should include these elements:
Title of position. Titles carry a great deal of weight in the workplace—and in court. Ensure the title matches the level of authority and responsibility. Ensure consistency throughout the organization. For example, all administrative assistants should be doing roughly comparable work.
Avoid offering inflated titles for everyday work. If you call your shipping clerk the “director of distribution,” a court hearing a discrimination case may wonder why she isn’t being paid the same as other “directors.”
Department/supervisor. Include the title of the employee’s direct supervisor, the department name and other identifying details that separate this position from others. Refer to supervisors by job title, not the names of the people who currently hold those positions.
Essential functions/qualifications. An item-by-item list of the job’s duties and responsibilities is the core of the description. To identify essential functions, look at the purpose of the job, the frequency with which each function is performed and the consequences if that function isn’t performed properly.
Four key categories to consider:
1. Physical skills (e.g., standing, walking, lifting, bending)
2. Learned skills (e.g., equipment proficiency, industry experience)
3. Job duties (e.g., travel, hours, shifts)
4. Behavioral skills (e.g., communication, leadership, time management)
The job description should also include the nonessential and less-frequent job duties and functions.
Results expected. Duties are just half of the equation. What do other employees, departments and customers count on this person to do? Include expectations relating to deadlines, customer service and company success.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Under the ADA, employers don’t have to go along with an accommodation that is unreasonable—one that, in the terminology of the ADA, “causes an undue hardship.”
If you reject what you consider an unreasonable accommodation, be ready to explain—to the disabled employee and, possibly to a judge or jury—why you believe the accommodation would cause undue hardship.
To do so, gather supporting data in the following areas:
Nature and net cost of the accommodation needed
The cost is the actual cost to your company. Remember that specific federal tax credits and deductions are available for accommodations required by the ADA.
Also, sources of funding are available to help pay for some accommodations. If you qualify for a tax credit, deduction or partial funding for an accommodation, only the net cost to you should be considered.
Various financial factors
Your organization’s financial resources, the number of employees at your facility and the financial impact of the accommodation all can be considered. If you have only one facility, the cost and impact of the accommodation will be considered in relation to the effect on expenses and resources of that facility.
Type of operation
This includes the structure and functions of the work force and the geographic, administrative or fiscal relationship to the larger entity of the facility involved in making the accommodation.
For example, an independently owned fast-food franchise that receives no funding from the mother company can argue that it would be too expensive to provide an interpreter so a deaf applicant could work as a cashier. The parent company’s resources don’t have to be factored in.
Impact of the accommodation on the facility
This involves how the accommodation would affect other employees’ job performance and your ability to conduct business.
Let’s say someone with a visual impairment applied for a job as a nightclub server. The club maintains dim lighting to create an intimate setting and lowers its lights further during the floor show. If the applicant requested bright lighting as an accommodation so she could see to take orders, you could assert that this would be an undue hardship, since it would seriously affect the nature of the operation.
Online resource: Employers can find accommodations for many disabilities at the Job Accommodation Network site, which is maintained by the Department of Labor’s Office of Disability Employment Policy.
Advice: When confronted with an accommodation situation, use the askjan.org website and document all the steps you take. Courts will have a hard time ruling against an employer that evaluated every accommodation listed on the JAN site.
Supplemental materials for LEAP 2025 session Crafting Legally Compliant Job Descriptions
It’s essential to have solid job descriptions that outline exactly what every employee is supposed to do. Without a good job description, a disabled employee can argue that very little about a job is essential—and therefore that they don’t have to do much work.
With a job description that lists essential tasks, it’s much easier to argue the employee’s disabilities cannot be accommodated.
Recent case: Pamela, an HR assistant for the Department of Homeland Security (DHS), suffered from many medical conditions, including chronic ear disease, severe depressive disorder, anxiety and neurological pain syndrome. Her performance evaluations noted that she needed to improve in many areas her supervisors considered essential to success.
Pamela became anxious about her job and requested reasonable ADA accommodations. She also took 12 weeks of FMLA leave.
When it was time to return, she presented a doctor’s note that said she needed to work in a less stressful position. When Pamela again requested accommodations, DHS sent her doctor a copy of her job description and asked which tasks she could perform. He checked “no” on a long list of tasks, including many requiring concentration such as:
The DHS concluded Pamela could not be accommodated and that no open positions existed that would fit her medical restrictions. She applied for disability retirement status and was approved—but she also sued, alleging failure to accommodate.
The court tossed out her case. It reasoned that DHS had shown that Pamela’s restrictions meant she couldn’t perform much of her job. Accommodating her was unreasonable. (Duray v. Johnson, No. 12-2800, DC MN, 2016)
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See other supplemental materials available.
If your organization is like most, you prefer to promote from within. Here’s a good, three-step process for making sure your promotion process doesn’t trigger a lawsuit:
1. Make sure your job descriptions are up-to-date and accurate. Ensure they identify all the essential job functions, education and training requirements and other important factors such as shift and overtime requirements. Always review them before posting a promotion opportunity.
2. Then, tailor the job announcement to match the job description. This accomplishes three important objectives. It encourages as many qualified internal applicants as possible, and it dissuades those who are only marginally qualified. But most importantly, it spells out the objective criteria you will use to decide if internal candidates are qualified for the job.
3. Finally, screen each application to make certain they meet the minimum requirements. Rank them all (or just the top few if there are many candidates) by how well their résumés meet the qualifications. Now you’re ready to choose the most highly qualified employees to consider. Go ahead and begin the interview process.
If you play your cards right, not only will you have selected the best applicant to promote, but also you will be able to easily justify your selection if a disgruntled and rejected employee sues.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session You’ve Been Sued: How to Prepare and Prevail
Some laws carry the prospect of personal liability. What does that mean? Laws like the FMLA and the Fair Labor Standards Act permit employees to sue individuals—not just employers—including HR professionals.
The practical impact: You could wind up having to forfeit personal assets—including your house, car and savings—if a court finds that you violated the law.
If you are ever personally sued by an employee, here is what you must do right away:
1. Contact an attorney. Immediately talk to your organization’s legal office and your own attorney. “Immediately” is the operative word. Lawsuits include strict deadlines stating when parties must respond. Missing one of those deadlines can mean instant liability—with almost no possibility of appeal.
2. Contact your employer’s insurance carrier. Insurers often provide legal counsel and work closely with company attorneys to prepare a defense. If you carry individual liability coverage, contact your insurance carrier or agent.
3. Clarify who will defend you. Find out if your organization will supply and pay for your defense. Most companies will stand behind you if you were acting on their behalf. If you have an employment contract, review it to see if you’ll be indemnified for any damages you are ordered to pay. If you have no written contract, try to secure your employer’s intentions in writing.
Final tip: If the case settles, make sure the settlement covers you as well as the organization. This is another reason to have your own attorney review all documents.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session You’ve Been Sued: How to Prepare and Prevail
Memo
Re: Employee Lawsuit Risks
When it comes to employment law, it’s always easier—and less expensive—to learn from others’ mistakes rather than your own. Here are five recent court cases that serve up good lessons for any manager:
1. Nix the nicknames: ‘Grandma’ and ‘Hank’ will get even
The case: Soon after a 54-year-old employee who’d worked at an electronics store for 17 years was demoted, she sued for age discrimination. Her evidence? A new supervisor had the habit of calling her “Grandma” and suggesting that she retire to spend time with her grandchildren. The court agreed, saying, “Calling someone ‘Grandma’ does suggest ageism.” (McDonald v. Best Buy, DC IL)
In another case, a supervisor insisted on referring to employee Mamdouh El-Hakem as “Manny,” saying the name would help him do better with clients. The employee protested, so the supervisor started calling him “Hank.” As you can guess, the employee sued for racial discrimination and the court agreed. (El-Hakem v. BJY Inc., 9th Cir.)
The lesson: Avoid attaching to employees nicknames that carry even the perception of being tied to a protected characteristic, such as race, age, gender, religion, national origin or disability.
2. Inconsistent discipline: A sure loser in court
The case: An employee of Indian descent felt she was criticized for her work mistakes far more harshly than her white co-workers. So she set out to prove her thesis. She kept a notebook and tracked when she was critiqued compared with her colleagues.
When she was fired for insubordination, she sued, saying that the real reason was national-origin discrimination. The court sent the case—and the woman’s notebook—to a jury trial. (Reddy v. The Salvation Army, SD NY)
The lesson: Trouble will come to supervisors who issue oral and written rebukes to certain employees yet overlook the same actions by co-workers. Such inconsistency will kill you in court, as this case shows.
3. Never bad-talk employees who take FMLA leave
The case: A railroad employee was in a 26-week training program to become a train engineer. Because of his medical condition, he had to take unpaid, job-protected leave during the program. The leave was covered under the Family and Medical Leave Act, which prohibits employers for punishing employees from taking such leave. But his supervisor made comments about his absence, asking whether he was “finally done with FMLA,” and saying the leave was a “distraction.”
When the employee missed the final training day, he was booted from the program. He sued, alleging he’d been punished for taking FMLA leave. The court agreed, citing the supervisor’s resentful comments. (Erickson v. Canadian Pacific Railway, DC MN)
The lesson: Never retaliate against employees because they take FMLA leave or are involved in any other “protected” activity.
4. Avoid strict ‘English-only’ language rules for employees
The case: A supervisor at a mall department store told six Somali workers who sorted clothes in a basement office that they’d be fired if they spoke “even one word of Somali” to each other at work.
Luckily for the store, the case didn’t make it to court. After some bad publicity and threats of a lawsuit, the store stepped in, apologized to the workers and disciplined the manager.
The lesson: You can require employees to speak English only for clear business reasons, such as customer service (talking to customers in English) or safety (talking to each other in one language at risky jobs).
Never mandate that English be spoken in break rooms or during off-duty hours. And make sure any language rules don’t carry any hint of discrimination.
5. Porn on computers can count as sexual harassment
The case: A female office employee claimed that her co-workers on three occasions had exposed her to pornographic images on their computer screens. She sued for sexual harassment, saying the company did nothing to protect her. The court sided with her, saying the images “were severe enough to have altered the terms” of her employment. (Criswell v. Intellirisk, 11th Cir.)
The lesson: Don’t take a casual attitude toward employees viewing inappropriate websites on their computers. As this case shows, courts are clamping down on companies that don’t do enough to protect employees from their co-workers’ online pornography.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
