Retaliation burns: know the ground rules to prevail.

• Author: Curry, Lynne
• Position: HR Matters

When manager Bill fired Kristi, he considered it a no-brainer and a done-deal. Kristi rarely showed up to work on time. She took excessive breaks and texted during the work day. She used the company phone and copier for personal matters.

A month earlier, he had formally reprimanded Kristi for her absenteeism, tardiness and poor work habits. At the time, Kristi said she couldn't help it because pregnancy complications made her late in the morning. Bill hadn't known Kristi was pregnant. The day after he reprimanded her, Kristi made a complaint to the Equal Employment Opportunity Commission (EEOC), alleging unfair treatment due to pregnancy. When Bill got the formal notice, he swore out loud and then fought the charge with the truth. He pointed out Kristi's problems and his intervention as a manager started before he or anyone knew of Kristi's pregnancy.

Kristi produced evidence showing other employees texted, made personal long-distance calls and occasionally arrived late for work. As the EEOC investigation drug on, Kristi's behavior got worse. She dragged in to work after 9 a.m., took two-hour lunches and left for the day by 4 p.m. When Bill fired Kristi, she dropped her complaint with the EEOC, hired an attorney and sued Bill in civil court. To Bill's astonishment, although Kristi lost her pregnancy discrimination lawsuit, she claimed victory on her retaliation charge.

Retaliation claims account for 25 percent of all charges filed with the EEOC. As Bill learned, some employees take advantage of the protection filing a complaint with a regulatory body gives them, and yet manage to win if the provoked manager fires them. Fifty-seven percent of all juries find in favor of plaintiffs who assert a retaliation complaint.

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As a manager, if you don't want to lose a retaliation charge brought by a problem employee, you need to know the ground rules. Any action or behavior that has the real or perceived effect of punishing an employee for engaging in a protected activity can constitute retaliation. This both protects employees from unfair treatment and complicates a manager needing to discipline an employee with work performance problems.

Federal employment and other statutes prohibiting employers from taking retaliatory or adverse action against an employee who has exercised his or her rights to complain include Title VII of the Civil Rights Act of 1964, the Age Discrimination in...