People are five times more likely to do the right thing when given time to think it over than they are when they have to make an instant decision. The research behind this statistic, conducted by a professor at the Kellogg School of Management at Northwestern University, is described in an article in the February/March issue of the Academy of Management Journal. The study concludes that organizations should "consciously design moral decision-making processes, integrating them into training and enforcing them institutionally via policies, rewards, and sanctions. Policies mandating a 'cooling-off period' or multiple levels of approval for consequential decisions, for example, might provide institutional analogs for contemplation, and ethics hotlines might act as institutional conversations. Opportunities for instituting and improving these kinds of procedures abound." In short, think before you leap.
So what does this have to do with employment law? The obvious application is retaliation.
After staying steady for nearly a decade, the number of retaliation claims filed with the EEOC has shot up every year since 2007. What happened in 2007? The U.S. Supreme Court decided Burlington Northern v. White. In that case the Court expanded the scope of actionable retaliation claims to include actions viewed by a reasonable person in the employee's position as materially adverse, even if they did not result in an ultimate employment action like discharge or demotion.
The steady rise in the number of retaliation claims filed with the EEOC is depicted on the chart below:
Now back to the Northwestern study. When an employee makes a bogus accusation of discrimination or asserts workplace rights in an opportunistic way, the supervisor's immediate instinct may be to strike back. But such a knee-jerk response can provide fodder for a retaliation claim. That's why your organization needs a good anti-retaliation policy. And all supervisors need instruction about the policy and training on how to react when an employee alleges discrimination, asserts rights under wage-and-hour or wage-payment laws, or makes a workers compensation claim. That training should include guidance to calmly listen to the employee's concerns and then take them to upper management and/or human resources. Supervisors need to know that bad things happen when they retort in hot blood or make snap decisions without a cooling off period and consultation with upper management and human resources.
For more about retaliation claims and how to avoid them, see Confucius Says: He Who Retaliates Digs His Own Grave.