Most discrimination and harassment complaints these days also involve  retaliation claims. They are easy to make and easy to win. Since 2006, when the U.S. Supreme Court ruled in Burlington Northern & Santa Fe Railway Co. v. White, 548 US 53 (2006), the law has been settled that a court can rule that an employee was not harassed or discriminated against but that there was retaliation.

My experience is that retaliation happens and that it’s difficult for leaders to avoid. I was coaching an executive, for example, who informed me that he didn’t have to worry about retaliation because he “just wasn’t going to talk to those people.” Of course I advised him that he had to work with the two complainants and couldn’t just refuse to communicate with them.

In another investigation I was involved in, the alleged harasser emailed everyone he thought might help his cause and advised them to come forward and give us a statement supporting him and hurting the complainant. This resulted, of course, in many people starting to gossip about the complainant who had previously been unaware that the whole situation was going on, as well as setting him up for a retaliation complaint.

If you are the one who is accused, however, such as this executive was, it’s hard to avoid your natural instinct to be angry and defensive, which can result in unintentional retaliation. In addition, I have been involved in many situations where co-workers unintentionally retaliated against complainants by taking sides, gossiping about the people involved, and giving them the “cold shoulder” if they disagree with the complainants.

• If you are accused of discrimination and harassment, resist the natural urge to get defensive or angry and try to understand the complainant’s concerns.
• Do not take any adverse action against a complainant without advice from HR.
• Be aware of the standards of confidentiality and defamation.
• Use an outside investigator to ensure neutrality and protect the internal investigator from retaliation.
• Make sure that co-workers — if they have been witnesses or are aware of the situation — are educated that they could face retaliation and defamation claims if they violate these rules.