With the sweep of hard-hitting stories dominating the headlines in recent months, you might think sexual harassment claims are the primary area of concern for the Equal Employment Opportunity Commission (EEOC), the agency responsible for enforcing federal employee protection laws. But there’s a more prevalent issue that continues to rear its ugly head in workplaces: retaliation.
Again for fiscal year 2017, retaliation dominated the list of cases handled by the EEOC. Of the more than 84,000 charges filed with the agency in that period, almost half (48.8%) involved employer retaliation.
What, exactly, is retaliation? And why do so many businesses get into legal trouble with it?
Retaliation comes in many forms, but it typically involves any action against an employee after he or she has engaged in “protected activity,” such as making an internal complaint, filing a charge with a government agency (the EEOC and others) or acting as a witness in an investigation. First, the employee speaks up, files a complaint or otherwise pursues his/her legal rights, then the employer responds inappropriately or downright illegally.
Improper responses may include:
Of the more than 84,000 charges filed with the agency in that period, almost half (48.8%) involved employer retaliation.
For the employee who has been wronged, it’s relatively easy to win a retaliation claim by showing a connection between:
Let’s look at an example:
Jane, a 10-year employee at a retail store, has always exceeded her sales quota and received excellent performance appraisals. Shortly after providing a witness statement in support of a coworker’s sexual harassment claim, Jane is terminated. The reason given by the employer was that Jane failed to provide 48 hours’ notice to her supervisor about a shift swap with a coworker.
During the investigation, it comes to light that employees frequently swap shifts on the same day without consequence, despite the 48-hour notice policy. As a result, and given the short time between the “protected activity” (the witness statement) and the perceived “retaliatory action” (the termination), the odds of Jane winning a retaliation case are high.
Because the EEOC enforces a handful of anti-discrimination and harassment laws — Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA) and the Equal Pay Act — it is the government agency hit the hardest with retaliation claims. But other federal agencies and laws often come into play. Employers also can land in legal hot water for retaliating against an employee regarding time and pay rights under the Fair Labor Standards Act (FLSA), medical leave rights under the Family and Medical Leave Act (FMLA) — both enforced by the Department of Labor (DOL) — or for reporting a workplace safety issue to the Occupational Safety and Health Administration (OSHA).
All employers should be on high alert about the potential for retaliation claims — and take the proper measures to avoid them. According to the EEOC, “people seek retaliation when they feel the workplace is not fair and that they cannot depend on formal channels for fair or just treatment.”
Culture and procedure are equally important in preventing accusations of retaliatory activity. To steer clear of retaliation claims, it’s smart business practice to:
When establishing an anti-retaliation policy (or any employee policy), it’s critical to ensure that the policy is legally sound. For a simple, affordable solution that promises guaranteed compliance with federal and state employment laws, check out these employee policy products from ComplyRight, available through HRdirect.
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