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Prepare to pay up when retaliation is alleged

Even if you win an employment discrimination case, you may end up losing if someone foolishly retaliates against the employee for complaining in the first place.

Before signing settlement, consider other filings

Sometimes, an employee files several discrimination complaints about incidents that are allegedly related. If you’re thinking about settling one complaint, be aware that other, related claims may remain outstanding.

Good faith wins, even if you might have been wrong

Courts almost never second-guess employers’ decisions—even dubious ones—as long as they are confident the decisions were made in good faith.

Protect against future lawsuits by documenting details of every complaint

Employees who complain about alleged discriminatory practices to their supervisors, HR or anyone else inside the organization in a position of authority are protected from retaliation for doing so. But they have to later show that they actually did at least mention discrimination.

Document why you decided not to rehire

Sometimes, employers let employees gracefully leave instead of being fired. But what if the former employee later applies for a new opening?

Ensure your records show exactly when personnel decisions were made

To prove retaliation, employees must show that the employer took some form of adverse action against them after they complained. That’s one reason employers must document all personnel decisions: So they can later tell a court exactly when an allegedly adverse action took place.

Fired worker right after she complained about sexual harassment? Prepare for a lawsuit

If you discharge an employee shortly after she files a sexual harassment complaint, chances are she will sue and allege retaliation. Even if she is off work for a few months, you may end up owing her more than lost wages if she also suffered emotionally.

Never deny benefits because of prior FMLA leave

An employer who didn’t provide paid leave because of past absenteeism now faces a retaliation lawsuit.

Beware close timing between FMLA leave and discipline

The closer a termination comes to the end of a worker’s FMLA leave, the more likely she may win an FMLA-retaliation lawsuit.

Warning letter doesn’t count as retaliation

Retaliation must include an adverse employment action such as termination, demotion or some other substantial and negative action like transfer to an undesirable shift. A mere letter of warning doesn’t rise to the required level of adversity.