"Performance Problems" Defense:
Employers often claim adverse actions were based on legitimate performance issues.
Counter-Strategies:
- Compile evidence of good performance before complaint
- Show timing correlation between complaint and suddenly discovered "problems"
- Demonstrate inconsistent application of performance standards
- Provide comparative evidence of how others' performance issues were handled
- Document any departure from normal progressive discipline procedures
"Restructuring" or "Business Needs" Claims:
Employers may claim organizational changes necessitated adverse actions.
Counter-Evidence:
- Show that restructuring primarily affected employees who complained
- Document timing of restructuring relative to discrimination complaints
- Demonstrate that business justifications are pretextual
- Provide evidence that restructuring wasn't applied neutrally
- Show pattern of using "business needs" to retaliate against complainants
Subtle Retaliation Tactics
Creating Hostile Environment:
Employers may create conditions designed to force resignation.
Documentation Focus:
- Record specific changes in work environment after complaint
- Document pattern of isolation, exclusion, or hostile treatment
- Show correlation between complaint and environmental changes
- Collect witness testimony about atmospheric changes
- Track impact on work performance and job satisfaction
"Managing Out" Strategy:
Systematic campaign to pressure employee to quit.
Recognition Signs:
- Gradual escalation of criticism or scrutiny
- Assignment of impossible tasks or unreasonable deadlines
- Removal of resources, support, or authority
- Social isolation and exclusion from workplace activities
- Creating paper trail to justify eventual termination
Retaliation Through Investigation Process
Unfair Investigation Procedures:
- Public disclosure of complaint to embarrass complainant
- Biased investigation procedures favoring accused harasser
- Inadequate confidentiality protections during investigation
- Using investigation as fishing expedition against complainant
- Prolonged investigation process designed to pressure resignation
Post-Investigation Retaliation:
- Adverse actions taken regardless of investigation findings
- Different treatment of complainant versus accused harasser
- Continued retaliation despite investigation confirming harassment
- Using investigation results to justify retaliatory actions