Both state and federal law also prohibit retaliation against anyone who provides information during, or participates in, an investigation or lawsuit. Witnesses to harassment, for example, are protected. For instance, in one case employees who were asked if they had witnessed “inappropriate behavior” on the part of the employee relations director were fired. The U.S. Supreme Court ruled that protection against retaliation extends to an employee who speaks up during an investigation into sexual harassment, even though this witness did not initiate any complaint.2

Employees have the right to complain of unlawful discriminatory or harassing treatment in the workplace. After such a complaint is handled, regardless of the outcome, the employer should focus on getting everyone involved back to a productive working environment.

Retaliatory actions, such as demotions, pay raise denials, criticism for bringing complaints or termination can result in large jury awards.3

Employers need to take steps that minimize their risks of retaliation claims, including:

• Develop zero tolerance anti-discrimination/harassment/retaliation policies.
• Apply company policies and practices consistently.
• Ensure that workplace rules and instructions are clear and well-disseminated to all employees.
• Keep communication channels open.
• Proactively respond to complaints. No matter how minor the conduct may seem, directly addressing problems early on can prevent escalation.

You can read more about retaliation in Retaliation.

Retaliation Claims Can Proceed Even When Harassment Claim Fails

An employee who brings a claim or participates in an investigation is protected even if the underlying harassment claim turns out to be meritless. In one case, the Ninth Circuit Court of Appeal dismissed a female employee’s sexual harassment lawsuit because the conduct was not severe or pervasive, but permitted the employee’s retaliation claim to proceed after the president claimed he was “tired of listening” to her complaints and fired her.4

1. Westendorf v. West Coast Contractors of Nevada, Inc., 712 F.3d 417 (9th Cir. 2013)