Retaliation in Discrimination Matters: A View from the MCAD

Friday, November 22, 2013

Having spent seven years as Commissioner of the Massachusetts Commission Against Discrimination, I have come to the realization that the charge of retaliation can lead to big and perceived problems for an employer.  I am only going to discuss two of ways that retaliation can impact an employer.  The first relates to an employee who brings a sincere claim of discrimination, harassment or failure to accommodate to the employer's attention.  An employer’s first instinct may be defensive.  The employer is angry at being accused of discriminating against an employee, and takes an adverse employment action against the employee.  The employee then files a claim of discrimination and retaliation against the employer.  The Commission may find a lack of probable cause on the charge of discrimination, but a finding of probable cause on the retaliation.  In order for an employee to prevail on a charge of retaliation, there does not need to be a finding that the employee was discriminated against.  An employer who is confronted with a claim of discrimination, harassment or failure to provide a reasonable accommodation by an employee should listen to the employee’s complaint, conduct a prompt impartial investigation, and take appropriate action.  Following these three steps should reduce the chance of a claim of discrimination and retaliation being filed, and, if filed, increases the chances  the charge of retaliation will also be dismissed.

A second source of retaliation claims involves an employee who believes that he/she is about to be fired.  To protect from being fired, the employee goes to the employer, alleging discrimination, harassment or failure to provide a reasonable accommodate by the employer.  The employee knows that by alleging a claim of discrimination, that the employer could be faced with a claim of retaliation as well as claim of discrimination, if the employer terminates the employee after being informed that the employee believes that he/she exercising a protected activity.  This course of action by the employee does not mean that you still cannot move forward with the termination.  An employer’s best defense to avoid such a charge is to document, document, document.  If employer documents the issues it has with an employee and informs that employee of the problems informally throughout the employment and during the review processes, an employer may end up with a better employee and/or reduce the risk of having a charge of discrimination and relation filed against it.  It will also, if a charge of discrimination and retaliation is filed, increase the probability that the charges will be dismissed.