Did you know that 48.8% of the charges of discrimination filed with the EEOC in the 2017 fiscal year alleged retaliation as a result of employees asserting claims of employment discrimination? In a distant second place were allegations of race discrimination. In third place: disability discrimination. Employers should expect retaliation claims to continue to lead the pack.
To give you an idea, in just the past two weeks, Coral Gables Trust Company settled with the EEOC in Miami on sexual harassment and retaliation claims for $180,000 along with other non-monetary terms; a printing company in Nevada settled for $242,000; and a grower in Washington settled for $95,000. On the upside, after litigating claims of retaliation, employers prevailed last week in Illinois, Louisiana, Michigan and Florida.
Retaliation can run the gamut from termination or suspension, to transfers and verbal abuse, and can even include increased scrutiny or spreading false rumors about an employee. Many employees believe that once they file a charge with the EEOC, they are protected from all adverse employment actions. Therefore, employees will sometimes deploy retaliation claims not just as a “shield” to defend against unlawful employer action, but as a “sword” to attack lawful ones as well.
Even if an adverse employment action is not taken with retaliatory intent, it can still be deemed retaliation if the action was taken because of the employee’s underlying complaints. For example, if an employee complains of a hostile or discriminatory work environment and their employer decides to transfer the employee to another location or another shift in an effort to remove the employee from the situation, such action can be deemed retaliatory even if the employer was not trying to punish or retaliate against the employee.
Below are some steps that employers can take to prevent retaliation:
- Include non-retaliation provisions in existing non-discrimination and harassment-free workplace policies so that employees know what retaliation is, and what they can do if they feel they are being retaliated against.
- HR departments should advise supervisors and managers on how to deal with situations that can turn into retaliation claims (i.e. claims of harassment or discrimination, complaints about other aspects of the work environment, etc.).
- Involve as few people as possible. This reduces the number of potential “retaliators.”
- Document all efforts taken to address or prevent instances of retaliation.
Employers should not retaliate against an employee for engaging in protected activity, such as bringing up issues of discrimination or harassment with their superior, or filing charges with the EEOC. But what if an employee commits a “suspendable” or “fireable” offense after filing an EEOC charge? Should an employer simply sit back and let it slide lest they be accused of retaliation? Employers should consult legal counsel before taking any action, but with the right proactive measures, they can ensure they are positioned to deter and defend against claims of retaliation.
Below are some tips for employers to defend their decisions:
- Make sure the adverse employment decision is consistent with the employer’s established practice. Have all other employees been disciplined the same way for similar offenses?
- Have individuals who are not being accused by the employee of improper acts or behavior make the adverse employment decision. This may involve escalating the decision to individuals higher in the organization.
- Ensure that all steps taken, and any evidence that supports the employer’s decision, are properly documented.