We continue with our Dawg Bones about good documentation practices. Last Friday we offered a sample memo that bluntly expressed dissatisfaction with the performance of the custodian, and gave clear directives designed to improve performance. The custodian responds by claiming retaliation. He is being picked on unfairly. No one else is treated the same way. This must be about his race, age, bad knee, or political or religious beliefs. How do you respond?

Retaliation claims are on the rise across the country. From 1997 to 2014, claims of some sort of “retaliation” doubled with the EEOC. This is now the most common form of complaint, comprising over 42% of the EEOC complaints in 2014. Up until a few years ago, race was always the number one complaint. Not anymore.

So anyone in a position of supervision of others needs to be prepared for the charge that you retaliated against someone. In essence, a “retaliation” or “discrimination” complaint alleges that you are not acting on the basis of the employee’s performance—you are acting on the basis of the employee’s race, sex, age, disability, religion, or to punish the employee for the exercise of free speech rights.

The best defense to such a charge is to show that you have treated people equally. In fact, that’s really the only defense. But keep in mind that “equal” does not mean the same. You can, and should, treat different employees differently based on legitimate, job related circumstances.

I once defended a principal who was accused of discrimination when she recommended the nonrenewal of a teacher—let’s call the teacher Ms. Jones--who had been at the school a lot longer than the principal. Ms. Jones claimed that this new principal had “written her up” more frequently than anyone else. This was true. But the principal had a perfectly adequate explanation. Ms. Jones singled herself out through her own performance.

For example, one issue involved the “Drop Everything and Read” initiative. All classroom teachers in the elementary school were to “Drop Everything and Read” to their classes for the last 15 minutes of the school day. All teachers were reminded of this at the start of the school year. Three weeks in, the principal, assistant and counselor “blitzed” every classroom during the final 15 minutes. Five teachers, one of whom was Ms. Jones, were not reading to the kids. All five got a friendly written reminder the next day.

Two weeks later another blitz was conducted. Again, EVERY classroom was visited. This time there was only one teacher not reading to the kids.   You guessed it: Ms. Jones. She got a sterner warning.

It went on that way for the rest of the year. The principal treated people the same, until they gave her reason not to.