Although we tend to think of discrimination in the workplace as a distinct incident—a boss denying his female subordinate a promotion because she’s a woman, an employee using a racial slur to refer to a colleague—it’s usually more of a process or a pattern. Discrimination happens over time, and may only become apparent through repeated incidents. An employee may realize her male co-workers keep receiving perks she does not, for instance, or that her normally fastidious supervisor refuses to learn how to spell her name.
It’s when an employer takes adverse action against an employee for reporting or opposing repeated behavior that discrimination becomes another process: retaliation. In that case, the process we’re talking is a long, drawn-out, and potentially costly legal one. Defeating a retaliation claim can be as much of a slog for an employer as dealing with discrimination was for the employee.
And here’s another pattern:
Over the past couple decades, retaliation claims have become the most common kind of discrimination claim filed with the Equal Employment Opportunity Commission. Last year was no exception: nearly half of all charges in 2017 centered on retaliation.
Although such claims are up, employers shouldn’t assume that any form of discipline constitutes unlawful retaliation. Take a note from the EEOC (emphasis added):
“Participating in a complaint process is protected from retaliation under all circumstances. Other acts to oppose discrimination are protected as long as the employee was acting on a reasonable belief that something in the workplace may violate [equal employment opportunity] laws, even if he or she did not use legal terminology to describe it.
Engaging in EEO activity, however, does not shield an employee from all discipline or discharge. Employers are free to discipline or terminate workers if motivated by non-retaliatory and non-discriminatory reasons that would otherwise result in such consequences. However, an employer is not allowed to do anything in response to EEO activity that would discourage someone from resisting or complaining about future discrimination.”
Legal risk isn’t the only reason to develop a smart, well-documented employee discipline process. For more tips and information about this topic, make sure to read our recent blog post: “How Wrongful Termination Erodes Your Culture and Bottom Line.”
Anti-Harassment Initiative Checklist
Is your anti-harassment initiative following best practices?
If you’re looking to roll out an anti-harassment initiative, or you’re wondering how your program stacks up against best practices, use this checklist to find out.