The number of retaliation claims filed with the EEOC has been steadily rising.  Is there more retaliation in the working world?  More likely some of the rise is due to better knowledge of various employment laws’ anti-retaliation provisions and greater enforcement of those provisions, including more lawyers bringing retaliation claims that end in sizable verdicts.

Perhaps the rise is due to more people being sick and tired of any form of unfair or unlawful retaliation.  In many ways, retaliation is a form of “bullying.”  Bullying at work is despised by employees (and jurors) just as they hated the schoolyard or neighborhood bully back when they were kids.  Curbing bullying in school is all the rage (and for good reasons).  Why not “fight” bullying at work too?

Every employer should want to be sure retaliation does not occur.  So, what are some of the key actions for HR professionals to help achieve this goal?

• Enforce a non-discrimination and non-retaliation policy.  You likely have this policy, but “talking the talk” doesn’t work if you don’t “walk the walk.”  The policy must be meaningful.  Everyone must be aware of their obligations not to discriminate or retaliate, and those in a position to retaliate — generally management — must be on-board with and held accountable under the policy.  Provide alternative ways for employees to raise concerns too, because if the only way to complain is through management, concerns get buried instead of unearthed.

• Educate on what is “protected activity” and what are “adverse job actions.”  Retaliation can only occur after the employee has engaged in “protected activity,” such as filing an EEOC Charge.  HR professionals must ensure managers understand what is protected activity, so that once that occurs, decisions affecting the employee — adverse job actions — are not taken without careful consideration.  Those adverse job actions have also been expanded over the years to more than just termination, denial of promotions, pay reductions and other immediately concrete harms.  They may now include job changes or transfers, discipline or negative reviews, unwarranted internal investigations or threats of losing job benefits or opportunities.  HR professionals need to be watchful of what happens to all employees, most especially those who have participated in protected activity.

• Investigate carefully and thoroughly.  If an employee deserves discipline or termination for his actions, prior protected activity doesn’t make him immune.  But, before the action occurs, do a careful and thorough review.  Listen to the employee’s side.  Interview all witnesses and follow up on all leads under the circumstances.  Take your time, be complete, don’t overreact or rush to judgment — and don’t things proceed until you are done.  Note the time-lapse between any protected activity and the action to be taken.  If it is a short time period, be on alert.  Likewise, question a decision-maker’s reasoning to be sure the prior protected activity is not a reason for the current decision.

• Act consistently and fairly, and document what occurs.  If decisions are not consistent, that will unravel the value of the non-discrimination and non-retaliation policy.  Decisions should make sense too, and be explained (and explainable) in ways the employee (and a potential juror down the road) would understand.  Employees don’t all have to agree with a decision (though that would be nice!), but they should be able to understand that there is legitimate reasoning for whatever action is happening.  Documentation should reflect what happened and why.  It should be timely, complete and factual.  It should be consistent with prior documentation.

These are just some of the steps to take to prevent retaliation.  It doesn’t have to happen, and ensuring that it doesn’t is one of an HR professional’s most valuable purposes.