Although most employers understand and are cognizant of the numerous New York City, New York State, and Federal anti-discrimination laws, many supervisors often forget that those same statutes also prohibit retaliation for raising one’s rights pursuant to those laws. Any criticism, discipline or other adverse employment action taken against an employee who recently complained of discrimination may be construed as unlawful retaliation.
All companies should develop an official policy that designates one or two individuals (preferably HR representatives) to investigate and resolve complaints of discrimination and/or retaliation. In addition, it’s necessary to make sure that all complaints are kept as confidential as possible, as people can’t retaliate for a complaint they aren’t even aware exists.
Next, it’s crucial to make sure that all complaints of discrimination are thoroughly investigated and resolved expeditiously. Although employees are protected against retaliation for complaining even if the investigation determines that the original complaint was without any merit, proper handling of the initial complaint will help to show that the company is committed to eliminating all discrimination and retaliation from the workplace.
During the investigation, the complainant should be kept abreast of any developments so that he or she feels his or her concerns are being taken seriously. After the investigation has been concluded, it’s necessary to always advise the complainant of the ultimate outcome, as well as advise the employee of any action that was taken as a result of the investigation.
At the same time, an employer should never be afraid to discipline an employee for performing poorly, even if that employee recently complained of discrimination. However, companies must be diligent in documenting any and all performance issues concerning the complaining employee. Although the employee might claim that it’s retaliation, if the action is well documented and consistent with the treatment of other employees, there is really nothing to worry about.
Lastly, it’s important to know that courts have held that a close temporal proximity between the complaint and a subsequent adverse employment action is evidence of retaliation. Thus, to minimize the possibility that an employee will even allege retaliation, it’s smart to let some time pass between the time the employee originally complained and when the employee is disciplined.
If you have any questions about, or need clarification of, any of the aforementioned information, please contact a New York City employment discrimination attorney.