Dealing with an employee who has filed a claim places an employer in a precarious position – the employer needs to properly manage the employee, but avoid a retaliation claim in the process. It's like walking a tightrope.
Employers have seen it many times – a troublesome employee is about to be disciplined, sees the handwriting on the wall, and files a charge as a preemptive measure. The employee believes the filing of a charge is tantamount to job protection – and oftentimes, so do employers.
But that should not be the case. While retaliation is the most common claim filed today – and the most likely to survive in litigation — employers can take affirmative steps to manage employees and avoid retaliation claims. Further, while the courts have broadened who can bring claims and expanded the scope of the conduct that can support them, at least in some contexts, the courts have heightened the standard of proof required of employees.