In 2014, nearly 43 percent of all discrimination complaints filed nationwide with the Equal Employment Opportunity Commission accused employers of retaliation. And according to the EEOC, the number of findings based on a retaliation claim is outpacing other types of discrimination.
Among the reasons people accuse their employer of discrimination, retaliation is the easiest for them to allege and the most challenging for a company to defend.
Many businesses create unintended liability for themselves because they don’t fully understand what constitutes retaliation or how to avoid it.
In fact, the EEOC reports that in a large number of cases, it is common for an original discrimination charge (on a basis other than retaliation) to fail to establish a violation of the law, but a subsequent retaliation charge to result in a discrimination finding.
For example, many times a company will be charged with race discrimination and be issued a “no-cause” dismissal, but later get charged with retaliation-based discrimination because someone in the company reacted inappropriately toward the employee who claimed race discrimination.
What is retaliation-based discrimination?
According to the EEOC, retaliation is a type of discrimination that could follow a previous discrimination allegation. For example, an employee who has filed a charge of discrimination, participated in a discrimination investigation or otherwise opposed discrimination may later experience retaliation discrimination – being fired, demoted, harassed or otherwise retaliated against – as a result of that involvement. But the EEOC’s stance against retaliation is clear:
The EEOC uses three main terms to discuss retaliation. Retaliation occurs when an employer takes an adverse action against a covered individual because that person engaged in a protected activity. Specifically, the EEOC defines these terms in this way:
- Adverse action: “An adverse action is an action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding.”
- Covered individuals: “Covered individuals are people who have opposed unlawful practices, participated in proceedings, or requested accommodations related to employment discrimination based on race, color, !!!, religion, national origin, age or disability. Individuals who have a close association with someone who has engaged in such protected activity also are covered individuals.”
- Protected activity: “Opposition to a practice believed to be unlawful discrimination.” Opposition occurs when employees have informed you (the employer) that they believe you are engaging in prohibited discrimination. The EEOC states, “Opposition is protected from retaliation as long as it is based on a reasonable, good-faith belief that the complained of practice violates anti-discrimination law; and the manner of the opposition is reasonable.”
For more information, visit the “Facts About Retaliation” page on the EEOC website.
Although a business may view an alleged adverse action against a covered individual as purely coincidental, the law doesn’t recognize coincidence, and is likely to interpret it differently. Unless very clear and specific evidence proves otherwise, the two events will be considered related.
Also, know that an adverse action could be much more subtle than what’s outlined in the EEOC’s definition.
For example, employment actions, such as changing a covered individual’s title, compensation, job duties, training opportunities, manager, cubicle location or overtime hours could be considered differential retaliatory treatment in some cases. There have even been cases where employees have made retaliation accusations because their manager no longer greets them with “good morning.”
Retaliation complaints are more likely to proceed to litigation than !!!ual harassment charges. Keep in mind that in these cases, juries are commonly made of individuals who are or have been an employee, which creates a point of empathy between juries and the plaintiff.
It is a natural response to withdraw from or tread cautiously around an employee who has alleged an offense by you. However, when done by someone in management because employees have asserted their right to challenge a perceived wrong, the employer may be liable for retaliation.
How to avoid retaliation-based discrimination
The average EEOC charge usually takes at least six months to investigate and resolve. That can add up to a lot of distraction and lost productivity for everyone involved in the investigation and everyone else in your company who hears about it.
You can’t prevent your employees from participating in protected activity, and in fact, you shouldn’t want them to. If there were discrimination happening in your company, wouldn’t you want to know about it and put a stop to it?
You can, however, take steps to ensure the possibility of retaliation is stamped out of your company culture.
Here’s where to start:
- Put as much time as possible between protected activity and later employment actions involving any covered individuals. While there have been cases in which years have passed and other evidence established that an employee’s earlier EEO activities motivated a manager’s adverse action, length of time between an EEO allegation and a manager’s employment action can be a key factor in determining whether there was a retaliatory motive.
- Keep thorough documentation of the reasons behind employment actions. You should have meeting agendas, notes and other applicable forms of documentation that show the business reasons that drive any employment actions you take. For example, if you deny someone a promotion, have proof of your selection process in writing that clearly shows there were valid business reasons for choosing another candidate over that employee. This will save you a lot of time and money should that employee claim that your denial of the promotion was retaliatory.
- Provide your managers and supervisors with anti-discrimination and anti-retaliation training. Specifically, in the event of an EEO investigation managers should know to:
- Avoid publicly discussing a discrimination allegation
- Not share information about EEO activity with any other managers or subordinates
- Be mindful not to isolate the employee and other covered individuals
- Avoid reactive behavior, such as denying the employee information, equipment and/or benefits provided to others performing similar duties
- Not interfere with the EEO process
- Provide clear and accurate information to the EEO staff, EEO investigator or judge
- Not threaten the employee, witnesses or anyone else involved in the processing of a complaint
- Have an EEO/anti-harassment policy that communicates zero tolerance for retaliation.
- Remind your employees of your zero tolerance policy for retaliation. Also ask them to bring it forward immediately if they experience or observe retaliation happening in your workplace.
- Communicate with your employees more than you think is necessary when they’re affected by an employment action. Be transparent about your business drivers so employees can connect the dots between what’s happening and the business reasons behind it. Without that information, employees may believe the changes are retaliatory or driven by personal reasons.
What to do if you’re accused of retaliation
Thank employees who bring forward retaliation-based complaints for sharing their concerns and assure them you will investigate and resolve the issue.
Remember that in most states, an employee has to exhaust all EEOC and/or state Fair Employment Practices Agency (FEPA) remedies before the case can go to court.
Don’t get caught making other unintended blunders as an employer. Get our guide to the 7 Most Frequent HR Mistakes and How to Avoid Them.