Thursday, September 1, 2016

The Retaliation Problem

The Equal Employment Opportunity Commission just released new guidance on retaliation, updating guidelines last issued in 1998. Reviewing the new guidance reminded us of all the times that retaliation has become an issue during the handling of statutory claims.
No employer is pleased to receive a charge, complaint, or lawsuit alleging wrongdoing. Individual managers and supervisors whose conduct or decisions are questioned by a complaining employee may feel personally affronted.  Everyone who is required to spend time responding to a complaint would rather be doing something else.  Co-workers of a complaining employee may feel like they are being forced to take sides.  Workplace gossip about the complaint may result in hurt feelings or the circulation of false information. 
The reactions and tension created by a complaint can result in a claim of retaliation (sometimes called “reprisal).  According to the EEOC, retaliation surpassed race discrimination in 2009 as the most frequently alleged basis of discrimination. Retaliation was asserted in nearly 45 percent of all charges filed with the EEOC in 2015. It’s worthwhile for employers to do everything they can to avoid retaliation claims.  Understanding the laws that protect complaining employees is a good place to start.
Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act and comparable state and local discrimination laws prohibit retaliation against an applicant or employee who makes a complaint or files a charge or lawsuit alleging discrimination.  It’s also against the law to retaliate against employees who participate in a discrimination investigation or who support a co-worker who makes allegations of discrimination. In addition, protections against retaliation are built into the Fair Labor Standards Act, the National Labor Relations Act, the Genetic Information Nondiscrimination Act, state workers compensation laws, and state “whistleblower” laws.  Unlawful retaliation can take many forms, including demotion, denial of a raise, refusal to promote, or exclusion from opportunities offered to other employees.
It’s important to remember, and not always well understood, that retaliation is unlawful even if the underlying claim is not determined to be valid.  As long as a charge, complaint, or legal action is made in good faith, the complaining employee is protected by prohibitions on retaliation.
So what can an employer do to limit the risk of retaliation claims?
  • Maintain a written and clear anti-retaliation policy. Clearly communicate to all employees that retaliation will not be tolerated. Give employees a way to report suspected retaliation and similar concerns internally.
  • Train and support managers and supervisors. Help managers understand that making a claim alleging an unlawful employment practice is a legally protected activity.  Describe what actions may be considered retaliatory. Provide guidance on how to carry out management duties while handling personal feelings that may arise when an employee makes a complaint. Emphasize that employee performance assessments must be consistent, based in facts, and free from unlawful motivations.
  • Document adverse employment decisions and negative evaluations. Ensure that decisions are made consistently and without unlawful motivations. Document that the adverse employment action would have occurred regardless of whether the employee made a complaint. Identify non-complaining employees who received the same adverse consequence.  Having such documentation available will assist in rebutting a charge of unlawful retaliation.
Posted by Laura Bartlow.