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Avoiding Retaliation Claims: How Employers Can Legally Respond To Employees Who Report Harassment

Employers often make it clear that harassment is not tolerated in the workplace. What is often made less clear is that retaliation is also not tolerated. When employees report harassment, they must feel they can do so without their employment being in jeopardy. However, depending on who they are reporting to and the specific harassment they are reporting, they may be concerned that they will experience backlash. While this concern deters some employees from reporting harassment, others will take the risk, knowing that they can file a retaliation claim. That is why employers must take steps to ensure that they do not expose themselves to retaliation claims. At Schwab & Gasparini, our experienced New York employer defense attorneys may be able to assist you in preparing an anti-retaliation policy, investigating and documenting harassment reports, and documenting the details of any negative actions taken after such a report is made to ensure you can prove the action is not retaliation. Call our Syracuse office at (315) 422-1333, our Albany office at (518) 591-4664, or our White Plains or Hudson Valley offices at (914) 304-4353 to schedule a consultation and learn more about protecting your business against claims of retaliation.

What Is Retaliation?

Preventing retaliation claims begins with understanding what retaliation is. Retaliation occurs when an employer punishes or provides negative consequences for an employee who engages in legally protected activities. Employers should understand that, in this context, it does not have to be Human Resources, the CEO, or the business owner personally who is punishing the employee. Managers, supervisors, and even co-workers can engage in retaliatory behavior, which exposes the employer to a claim because those individuals represent the employer.

Retaliation Examples

Examples of actions that can be considered retaliation include firing, demoting, reassigning, or suspending the employee. Changing their work hours or schedule, reducing their pay or benefits, giving them a negative performance review, or creating a hostile work environment are also potential forms of retaliation.

However, sometimes some of these actions would be taken regardless of whether employees report harassment or not. The key to avoiding retaliation claims is ensuring that the employer has detailed documentation to back up their reasoning for taking such action, as evidence that it is not retaliation.

Legally Protected Activities

Retaliation is punishment for legally protected activities. Those activities can include reporting workplace discrimination or harassment, filing a complaint with the Equal Employment Opportunity Commission (EEOC) or other governmental agencies, requesting accommodations for disabilities or religious practices, seeking fair pay, taking legally permitted leave, or refusing to participate in illegal activities.

Legal Protections Against Retaliation

Employees have legal protections against retaliation when they report harassment or engage in other protected activities. There are two laws that provide these protections. N.Y. EXC § 296(e), known as the New York Human Rights law, is a state law that prohibits retaliation against employees for reporting harassment. Additionally, the federal law Title VII of the Civil Rights Act of 1964 prohibits retaliation when employees engage in legally protected activities, including reporting harassment.

Employees who believe they have been retaliated against may file a complaint with the EEOC against covered employers within 180 days of the retaliation. They can also file a complaint with the New York State Division of Human Rights, which may lead to a public hearing that could potentially damage the employer’s reputation in the community. Employees may also file a lawsuit against the employer. Therefore, it is essential that employers have clear policies and procedures for harassment reports and investigations so they can avoid these claims.

Avoiding Retaliation Claims From Employees Who Report Harassment

When an employee reports harassment, they should not face adverse consequences for doing so. While some employees may understand that retaliation is unacceptable, some may not realize that their desire for revenge or to “get back” at them is retaliation. This can be particularly true if the accused individual or another employee close to the accused employee believes the accusation of harassment is unfounded. Therefore, it is vital that employers take steps to ensure that this behavior does not happen.

Develop and Implement a Clear Anti-Retaliation Policy

Many employers focus on creating anti-harassment policies, which are also an essential part of preventing retaliation. These policies should cover all forms of harassment, including sexual and gender-based harassment. These policies should also contain an anti-retaliation policy or the employer should create a separate anti-retaliation policy.

A robust anti-retaliation policy should include a clear definition of retaliation with examples of what constitutes retaliatory behavior. A comprehensive policy should also assure employees that they will not face punishment or negative consequences for reporting harassment or participating in a harassment investigation, and provide an outline for a clear and easily accessible reporting procedure for retaliation claims. This policy should also include clear consequences for false harassment accusations to ensure that employees are aware of such consequences.

Train Management and Human Resources Personnel

Even though some management and Human Resources personnel will likely already have a good grasp of harassment and retaliation, employers should train them on the specifics of their anti-retaliation policy. Employers should ensure these employees can recognize and respond to potential retaliation. The New York State Division of Human Rights offers a short video with information about retaliation that may be beneficial for training.

Employers should also emphasize the importance of ensuring that employment decisions are separate from activities such as reporting harassment. They should also make sure that Human Resources personnel and management understand the legal consequences of retaliation under both New York state law and federal law, and what those consequences could mean for the employer to ensure that they understand the importance of avoiding retaliation.

Investigate All Complaints Thoroughly and Impartially

Employers should implement clear and confidential processes for reporting and investigating both harassment and retaliation. These processes should be thorough and impartial, with several individuals trained to handle them to ensure impartiality regardless of who the accused and accuser are.

Employers should ensure these investigations are conducted promptly and quickly. All steps of the investigation should be thoroughly documented, including interviews, evidence collection, and findings. Investigations should also remain confidential, with the evidence, information, and findings being revealed only to those who need to know, such as the accused and accuser.

Ensure Employment Decisions Are Non-Retaliatory

Employers should ensure that they can clearly prove that all employment decisions are based on legitimate, non-discriminatory, and non-retaliatory reasons. This includes hiring, firing, demotions, pay raises, and promotions. Employers should also use caution to ensure that any negative employment decisions do not occur too closely in time to a harassment report or participation in an investigation.

Sometimes it is unavoidable to take a negative employment action close in time to a harassment report. In these instances, employers should be certain they have thoroughly documented the reasons for taking such actions and that they can demonstrate the actions are not influenced by the employee’s harassment report or other protected activities. Employers may want to consult with an employer defense attorney at Schwab & Gasparini to review these cases and ensure that they have the documentation needed to support taking action and prove it is not retaliation.

Monitor Post-Complaint Treatment

Retaliation does not just come from those in a position of authority over the reporting employee. Co-workers, other management or supervisors, and others may try to isolate or punish the employee for their report. Employers should pay close attention to how the employee is being treated by others post-complaint.

If the employer notes any behaviors that could be perceived as isolating, marginalizing, or otherwise punishing the reporting employee, they should step in and ensure the behaviors stop. They should also communicate openly with the reporting employee and ensure they feel safe and supported.

Seek Legal Counsel When In Doubt

Whether the employer has concerns regarding the creation of an anti-retaliation policy or questions about a specific situation, they should seek legal counsel for guidance about how to proceed. Harassment and retaliation are delicate topics that can quickly get out of control if not handled well, and advice from a lawyer experienced in employment law may help employers ensure that does not happen.

What About False Harassment Reports?

False accusations can damage the reputation of the accused as well as the employer. Therefore, most employers wish to discipline employees who falsely accuse others of harassment. However, if not handled properly, this can look like retaliation. Employers can take action against employees who make false accusations, but they should take a few steps to ensure that they cannot be accused of retaliating against the employee.

Investigate and Keep Documentation

Whether the investigator suspects a false accusation from the start or becomes suspicious during the investigation process, they must keep their focus on the facts rather than any personal feelings. They must also keep meticulous documentation of those facts, including witness statements, interviews with the accused and accuser, and any evidence of the alleged harassment, such as emails, texts, or voice messages.

Assess the Accusation’s Credibility

The investigator should carefully assess the accusation's credibility, particularly if the investigation does not provide unambiguous findings. If the accuser confesses to making a false accusation, this can be used to declare the accusation false and take disciplinary action. Without an uncoerced confession, employers will need to tread carefully if there are any doubts about the accusation’s credibility.

Consulting with legal counsel may help provide some clarity around what options the employer may have if they suspect, but cannot prove, a false accusation. This may also be important if the accusation is proven to be false but may not have been malicious in nature, such as an accusation resulting from a misunderstanding or misinterpretation of someone’s words or actions. Understanding the potential legal repercussions may help employers decide how to proceed.

Take Action Based on Investigation Findings

Separate the investigation itself from any disciplinary action that may result. Ensure that the investigation is impartial, which includes unbiased interviews with all parties including witnesses, and collecting all evidence, regardless of which side it favors. If the investigation findings support that the accusation is false and the employer decides to take action against the accuser, employers must be able to clearly show the evidence and testimony that led to those findings, and that the reputation, popularity, or employment position of either party did not play a role in deciding to take action.

Be Transparent With the Accused and Ensure They Are Treated Fairly

In cases where harassment complaints are or may be false, employers should be transparent with the accused regarding the investigation’s outcome and any actions taken. They should also ensure the investigation is kept confidential and that the accused is treated fairly. If a false report leads to the accused being harassed or the accusation creates a hostile work environment, the accused could file a retaliation claim.

Documentation Is Key to Preventing Retaliation Claims

Business decisions must be made, regardless of whether it is a convenient time. This means that there may be instances where an employer must fire, demote, or change the work hours or schedule of an employee who recently filed a harassment report. In these instances, documentation will be key to preventing a claim of retaliation.

Employers can create this documentation by doing the following:

 

• Negative Performance Reviews: If an employee’s scheduled performance review occurs soon after a harassment report and the review will be negative, have specific, provable examples of why the review is negative. 

• Demotions, Lay-offs, or Terminations: When an employee must be demoted or terminated, provide clear, precise, and provable details about what led to the demotion or termination. If the employee is being laid off, detail the process behind deciding who would be laid off, such as whether the decision is based on seniority, department, performance, cost considerations, or strategic needs.

• Changes in Work Hours or Schedules: If an employer must change the employee’s work hours or schedule, they should ensure they can provide clear reasoning for doing so, including any process or policy that may have contributed to the decision

Additionally, employers should consider creating processes or policies for each of these business decisions and distributing them to employees so that they are aware of how these decisions are made before any issues or concerns regarding retaliation may arise.

How a New York Employer Defense Attorney Can Assist You

Employees who report harassment are engaging in a legally protected activity, which means that employers may expose themselves to retaliation claims if they demote, fire, reduce pay, or change work hours or schedules soon after such a report is made. Other actions may also be perceived as retaliation. A New York employer defense attorney at Schwab & Gasparini may be able to assist you in creating comprehensive anti-harassment and anti-retaliation policies, outlining a thorough investigation process, and determining appropriate discipline for false accusations. We may also be able to assist you in determining how to proceed when you must make a business decision that could potentially be perceived as retaliation. Call our Syracuse office at (315) 422-1333, our Albany office at (518) 591-4664, or our White Plains or Hudson Valley offices at (914) 304-4353 to book your consultation and learn more.

Mon Oct 27 2025, 12:00am