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Human resource professionals know complying with workplace anti-discrimination laws is important. Equally important is ensuring that employees who complain about perceived discrimination are not retaliated against for doing so, even if the underlying claim is never proved. <\/p>\n
Why is this so important? Retaliation is the most common type of claim filed with the Equal Employment Opportunity Commission (EEOC). <\/p>\n
\u201cOftentimes, an employee will be discriminated against first because of a protected characteristic,\u201d says EEOC Commissioner Keith Sonderling. \u201cThen, once they have exercised their right to complain of discrimination or participate in the EEO process, retaliation claims can occur.\u201d<\/p>\n
According to the agency\u2019s data, more than half of all charges filed in fiscal year 2021 included a retaliation claim\u2014making it essential for employers to have sound practices in place to prevent retaliation and document the reasons for disciplining and firing employees. <\/p>\n
\u201cEmployers should seek to be as consistent as possible in applying their employment policies,\u201d says Stephen Gee, an attorney with Fisher Phillips in Detroit. \u201cIf an employer has to deviate from a past practice, it should consult with legal counsel to ensure the deviation is justified.\u201d<\/p>\n
What are some best practices to avoid retaliation claims? Here are four tips for employers. <\/p>\n
Recognize What Qualifies as Protected Activity<\/p>\n
The EEOC\u2014as well as other federal, state and local agencies\u2014enforces laws that protect employees and applicants from discrimination based on a variety of characteristics, including age, disability, national origin, race, religion and sex. These laws also make it unlawful for employers to retaliate against workers for bringing such claims.<\/p>\n
\u201cParticipating in a complaint process is protected from retaliation under all circumstances,\u201d according to the EEOC. Notably, the complaint doesn\u2019t have to be formal to be protected. \u201cOther acts to oppose discrimination are protected as long as the employee was acting on a reasonable belief that something in the workplace may violate EEO laws, even if he or she did not use legal terminology to describe it,\u201d the agency says. <\/p>\n
An employee\u2019s protected activity can take many forms. Examples include:<\/p>\n
\u201cEmployers may mistakenly believe that only full-time, current employees have protections against retaliation,\u201d Sonderling notes. However, these protections apply to job applicants; current full-time, part-time, probationary, seasonal or temporary employees; and former employees covered by EEO laws, regardless of citizenship or work authorization. <\/p>\n
Additionally, employees are protected from retaliation when they complain about perceived discrimination against co-workers.<\/p>\n
Train Supervisors on -Common Pitfalls <\/p>\n
Why are retaliation claims so common? \u201cThere are a multitude of reasons,\u201d Gee says. Perhaps a manager has been inconsistent in applying and enforcing the company\u2019s employment policies. Or maybe a supervisor took an employee\u2019s discrimination allegation personally and identified the employee for a subsequent layoff. <\/p>\n
\u201cFor several reasons, retaliation can be a knee-jerk reaction,\u201d Sonderling explains. No one wants to be accused of wrongdoing. So when an applicant or employee engages in protected activity, such as filing an EEO complaint, it\u2019s natural to take it personally, he says. <\/p>\n
Also, an untrained supervisor may see employees who complain as causing problems for the organization and may attempt to deter employees from continuing to participate in the complaint process\u2014or even decide to fire them to remove the \u201cproblem\u201d entirely.<\/p>\n
\u201cUnfortunately, employers may not realize or remember in the moment that these actions may be unlawful and constitute retaliation under EEO laws,\u201d Sonderling notes.<\/p>\n
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Retaliation claims are also so prevalent because retaliatory conduct \u201cencompasses a broad range of actions,\u201d he says. Maybe supervisors simply don\u2019t understand what conduct is retaliatory. <\/p>\n
Supervisors should recognize that they cannot punish an applicant or employee for participating in the EEO process. This includes participating in an employer\u2019s internal EEO complaint process. <\/p>\n
Supervisors and managers may also make the mistake of thinking that only firing an employee counts as retaliation. Sonderling cautions, however, that retaliatory conduct includes much more. For example, retaliation may include the following actions: <\/p>\n
Establish a Process for Handling Complaints<\/p>\n
Employers should consider assigning a designated management official, in-house counsel or an HR staff member to review proposed employment actions and ensure they are based on legitimate nondiscriminatory and nonretaliatory reasons, Sonderling recommends. <\/p>\n
Additionally, management and human resource professionals should be trained on how to properly and proactively respond when employees raise concerns about potential EEO violations, such as asking clarifying questions and seeking additional information to ensure they fully understand the employee\u2019s concern.<\/p>\n
\u201cTraining can also help ensure that discipline and performance evaluations are motivated by legitimate, nonretaliatory reasons,\u201d Sonderling says. <\/p>\n
Create and Follow -Consistent Practices<\/p>\n
Consistency is key. Failing to apply policies evenly can lead to perceptions that certain workers are being singled out for filing a complaint or participating in a workplace investigation, Gee explains. <\/p>\n
\u201cEmployers should ensure they have a strongly written anti-retaliation policy that is communicated to all staff,\u201d he recommends. Employers should also clearly inform employees that retaliation is prohibited and that they should report any perceived retaliatory behavior immediately. All complaints should be promptly and thoroughly investigated, he adds.<\/p>\n
Sonderling says policies should be written in plain language and should include the following:<\/p>\n
Lisa Nagele-Piazza, SHRM-SCP, is legal content counsel for Fisher Phillips in Atlanta. <\/em><\/p>\n Illustration by Adam Niklewicz for <\/i>HR Magazine.<\/i><\/p>\n Disciplining for Legitimate Reasons<\/p>\n Although employers are prohibited from retaliating against workers for engaging in protected activity, employees can still be disciplined or fired for legitimate reasons. Before taking adverse action, employers should ensure the decision is:<\/p>\n Employers should consider documenting employment decisions to help defend against possible discrimination charges. \u2014L.N.-P.<\/p>\n<\/div>\n<\/div>\n\n\n\n