Workplace Retaliation: An Eye for an Eye
When asked which type of Equal Employment Opportunity Commission (EEOC) complaint is the most common, many assume that disgruntled employees file race, gender, or disability EEOC charges with the most frequency. However, the most common EEOC charged filed in the last few years has been the charge of retaliation. Charges for allegations of workplace retaliation comprised 49% of all EEOC claims in the 2017 fiscal year. Race has been a close second in the past few years, coming in at 34% of all EEOC claims in the 2017 fiscal year.
What is workplace retaliation?
According to the EEOC, retaliation occurs when an employer takes an adverse action (such as demotion, termination, or disciplinary action) against an employee after engaging in a protected activity. Some protected activities include filing a workers’ compensation claim, reporting illegal behavior to the government or filing an EEOC discrimination charge. Simply put, anytime an organization terminates, demotes, harasses or otherwise retaliates against an individual for filing a charge with a regulatory agency, participating in an internal or external investigation into the charge, or otherwise opposing discrimination in the workplace, the employer may have violated the EEOC guidelines. The reason this claim is so common is that it is often added to other EEOC charges of all types, such as race, religion, national origin, etc. Therefore, when an employee goes to the EEOC to file a charge, they often include retaliation as part of the discrimination claim.
How can employers protect themselves from claims of retaliation?
Often when a discrimination, harassment or bullying complaint is filed against a manager, it takes a substantial amount of restraint from the manager to avoid retaliating against the employee. Therefore, it is suggested to remind the accused employee of the company’s very strict anti-retaliation policies when informing the accused of the complaint. Additionally, once a complaint has been made, it is often helpful to physically separate the complainant from the accused, generally by moving the accused employee to another shift, role, location, etc. at least for a temporary period while the investigation is underway to reduce the company’s exposure to a retaliation complaint and to diminish or cease any continuing harm.
Consider how the timing of certain employment decisions may look to an outside third party.
For example, terminating an employee directly after learning that the employee has filed an EEOC claim certainly may look retaliatory at face value. It is important to consider how the timing of an adverse employment action may appear to a reasonable outsider who knows nothing about your organization. If you are able, it is best to allow an adequate amount of time to pass following the filing of a complaint before taking an adverse employment action against the complainant. However, doing so is not always possible, especially if the complaining employee’s workplace performance or misconduct is negatively affecting the business. Therefore, if the organization must take an adverse employment action against an employee who has recently filed an internal complaint or external charge, it is critically important that the management team collects adequate documentation in order to support the decision and consults with an HR Professional or labor law attorney regarding the situation.
It can be human nature to want to retaliate against employees who have made hurtful allegations against the organization or a member of the senior management team. As Mahatma Gandhi profoundly stated, “an eye for an eye will make the whole world blind.” It is imperative to remember that it violates federal law to retaliate in many complaint situations. Additionally, retaliation does not favorably enhance the organization’s reputation in the community. Through proper policy development, training and senior management behavior modeling, your organization can greatly reduce its exposure to an EEOC charge, including claims of retaliation.
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