The Importance of Having a Anti-Retaliation Policy When You Conduct an Investigation

When employees report wrongful conduct in the workplace such as harassment or discrimination, it is important to conduct a thorough investigation. However, even if the report is determined to be unfounded, an employer may still be held liable if the company takes adverse action against the employee. Before conducting an investigation into workplace claims, it is critical that employers have clear policies in place to avoid retaliation and to ensure that the employee’s rights are protected.

When No Anti-Retaliation Policy Is in Place

When human resource managers or employers investigate claims of wrongful conduct such as harassment or discrimination, and there is no anti-retaliation policy in place, the investigators may be misguided. If they find that a report is unfounded, they may wish to terminate the employee or take other action against someone whom they perceive as causing unnecessary trouble in the workplace. However, an employee who makes a report about such conduct is still protected by a number of key employment laws, including the right not to be the subject of retaliation. More employers are held liable for retaliating against employees than of being found guilty of the actual discriminatory conduct alleged. For these reasons, it is important that the employer have an anti-retaliation policy in place before carrying out an investigation to protect the employer's interest and shield it from liability. 

Relevant Laws

Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination by race, color, religion, sex or national origin. Retaliation is also included in the language of this federal law. According to this law, it is unlawful for an employer to take materially adverse action against a worker because of protected activity. This protected activity may include reporting unlawful conduct, participating in an investigation alleging unlawful conduct, testifying at a hearing regarding another worker’s complaint or otherwise assisting in this process. Materially adverse action is broader in nature than adverse action that is the subject of other non-discrimination provisions. These actions include anything that may deter an employee from complaining about discrimination. For example, transferring a worker to a harder job with the same pay, suspending an employee and later reimbursing him or her, refusing to investigate threats against a worker, filing false criminal charges against a worker, changing the worker’s schedule or excluding a worker from training may be considered materially adverse action that can subject the employer to liability. 

Additionally, many states have established anti-harassment laws that also incorporate anti-retaliation protections. Employers should carefully review federal and state anti-retaliation laws before developing their own anti-retaliation policy.

Establishing Clear Policies

Workplace policies should incorporate state and federal laws into them to ensure that the employer is protected. Workplace harassment and discrimination should be defined in the policies. This includes stating the scope of the policy and to whom it applies. Additionally, the policies should include examples of violations of workplace laws so that employees are better able to notice them. Policies should include language regarding the possible penalties for engaging in this behavior. Strong anti-retaliation language should be included in these policies so that employees are not afraid to report violations.

The reporting procedure should be very clear, specifying to whom reports of law and policy violations should be made. Common policies often indicate that the employee should address the person who is engaging in a harassing or discriminating manner and then if there is no change to report the incident to his or her manager or human resources. The role of managers who receive such reports may also be included in these policies, such as stating that they are responsible for reporting this information to human resources and for taking appropriate action to prevent retaliation or prohibited conduct from transpiring after a report of this nature is made.  

The employer's harassment policy, discrimination policy, and anti-retaliation policy are typically included in the employee handbook. If these policies are absent, employers should ensure that the policies are established, implemented and included in the employee handbook. Working with a professional and independent organization can help establish policies that comply with state and federal laws and protect the employer.


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