It is also important to treat an employee who complains about discrimination or harassment with care.  Retaliation is often subjective and can include actions that the employer takes with the best of intentions.  Remember to focus on the wrongdoer, not the complaining employee when trying to resolve a situation.  The employer needs to fix the problem, not remove the complaining employee from the situation. Even if the original complaint turns out to be unsubstantiated, as long as an employee can prove that there were negative effects as a result, the employee can win a retaliation claim.  Steps to take to prevent retaliation is to establish a policy against it, communicate with the complaining employee, keep the complaints received confidential, and document everything, consider sending the complaining employee a letter confirming your discussion.  Remember, you can take actions against a complaining employee for other reasons, but be prepared to show that you have valid reasons unrelated to the complaint, including documentation of prior warnings.

When disciplining an employee it is very important to follow your company’s written policies and procedures.  Make sure managers work with Human Resources and are trained properly on these policies.  Follow a progressive disciplinary action approach, whenever appropriate, which includes the use of verbal and written warnings, probation, suspension, transfer and/or demotion.  Make sure the disciplinary action is in proportion to the seriousness of the action/violation; be consistent with the type and severity of the corrective action imposed on other employees under similar circumstances, no matter who the employee is.  This progressive approach will prove that the company’s policy was applied fairly and allow for the employee to be aware of their action/violation and an opportunity to correct their behavior.  Ample time should be given to the employee to improve his/her performance as determined by your company’s policy, but be fair and consistent.  In general, several warnings should be given to the employee before termination is considered, unless it’s related to extreme misconduct.

Every step of the process should be thoroughly documented in common sense language that can be easily followed, with specific corrective actions and, if possible, quantifiable performance measures.  Verbal and written warnings, with specifics about the particular issue, details of the conversation, and the potential consequences, should be documented and signed by the employee acknowledging the discussion and placed in the employee’s personnel file.  It is important that no evidence is destroyed, because, if this is discovered, the courts will more than likely assume it would have supported the plaintiff.  Key personnel documents should be kept for at least a few years.

Employers should carefully investigate the situation surrounding the disciplinary action/termination and make sure they have a specific, legitimate, non-discriminatory reason for terminating the employee.  Obtain all sides of the story and be fair to everyone involved, obtain sufficient evidence to back-up your decision, and make sure you are not swayed by one individual’s version, especially if the person has their own agenda.  Never terminate an employee on the spot.  If the action/violation is extremely serious, consider suspending the employee (with or without pay) pending the outcome of the investigation to allow you sufficient time to confirm the circumstances surrounding the action in order to discipline appropriately.  Make sure you keep the names of the individuals you spoke with confidential, especially from the person being terminated.  Consider contacting your employment law attorney for guidance.