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For six years, reports of retaliation have been more common than any other type of discrimination in the workplace. In 2014, retaliation claims made up a record 42.8 percent of all charges reported to the Equal Employment Opportunity Commission. That percentage represents 37,955 charges nationwide (double the number filed in 1998) – 3,708 filed in Texas alone!
With employees increasingly willing to exercise their rights and recent Supreme Court cases broadening what misconduct can be considered retaliation and who can sue for discrimination, it’s more important than ever for businesses to understand and prevent retaliation claims. Without awareness and an effective strategy, even employers with the best intentions can end up with a retaliation charge on their hands.
Retaliation is punishment for complaining about or resisting discriminatory practices in the workplace. If an employee, job applicant, close associate, or someone participating in a discrimination proceeding is treated adversely in what seems like an effort to discourage him or her from opposing a discriminatory practice, he or she may file a retaliation claim against the employer, employment agency, or labor organization involved.
Employers may not punish anyone acting in a “reasonable” manner on a “reasonable, good-faith belief” that anti-discrimination laws are being broken. It doesn’t matter whether the employee’s initial claim of discrimination holds up; retaliation charges can stick after the associated discrimination charges fade away. Protected activities include complaining about the alleged discrimination, threatening to file a discrimination charge, refusing to obey a discriminatory order, and requesting a (reasonable) accommodation based on religion or disability. Terminating an employee is not the only way to trigger a retaliation claim; “adverse action” ranges from refusal to hire to unjustified negative evaluations. (For more information, see EEOC’s Compliance Manual Section 8, Chapter II, Part D, Chapter II, Part B – Opposition and Part C – Participation.)
Retaliation is not the same thing as discipline. Giving an employee negative comments or reviews justified by poor work performance is not retaliatory, even if that employee is filing a discrimination claim. Employees who believe they are being discriminated against may not respond with unlawful activities like acts of violence, or even with poor work performance or tardiness. Refusing to follow a discriminatory rule does not exempt them from following legitimate ones.
Retaliation should be a concern for even well-intentioned employers. If you try to remedy a discrimination complaint in the wrong way, it could have harmful effects for the employee. Changing an employee’s shift or transferring them to a new location to remove them from a discriminatory environment does not address the unlawful behavior of the coworkers or supervisors, however sufficient it may seem. If the employee is at all negatively affected, you may end up with a retaliation claim on your hands.
Apart from not punishing employees who complain of discrimination, the best way to avoid retaliation charges is to implement a preventative strategy. Establish a strong anti-retaliation policy; communicate with managers and employees; and, in case prevention fails, document everything and consider insurance protection.
Establish a clear policy. Work with your legal counsel to draft a good policy against retaliation. Let your employees know what retaliation is, that you will not tolerate it from anyone, and what steps an employee who feels retaliated against should take.
Train your managers. Policies without training or implementation are notoriously ineffective and may leave you liable for your manager’s actions. Provide annual training on preventing and identifying retaliation in the workplace, as well as how to resist taking allegations personally, be careful what they say in the workplace, and seek help in tricky situations.
Communicate with employees. Make sure to sit down with any employees complaining of discrimination or retaliation and explain your antiretaliation policy. Express that you are taking their complaints seriously and are taking steps to remedy the situation.
Document everything. Keep a record of your conversations with managers and employees; send them notes confirming your policies and interactions. Make sure to document the reasons for disciplinary actions, especially against employees who has filed a discrimination charge.
Get insurance. There is no guarantee that an employee won’t file a retaliation claim, which could can lead to long, expensive legal battles. Purchasing employment practices liability insurance can help with the cost of damages, settlements, and legal counsel.
By implementing good preventative strategies and knowing how to handle retaliation claims when they come up, you can minimize the risk of getting charged with retaliation and create a safer, more productive workplace at the same time.
As always, we are here to help you any way we can. Please don’t hesitate to call or email if you need us.
The Deerfield Team
“EEOC Releases Fiscal Year 2014 Enforcement and Litigation Data. U.S. Equal Employment Opportunity Commission.”http://www1.eeoc.gov/eeoc/newsroom/release/2-4-15.cfm
“FY 2009 – 2014 EEOC Charge Receipts by State (includes U.S. Territories) and Basis.” U.S. Equal Employment Opportunity Commission. http://www1.eeoc.gov/eeoc/statistics/enforcement/charges_by_state.cfm#centercol
Ho, Catherine. “Rise in retaliation claims reflect changing laws, attitudes about workplace bias.” Washington Post, Nov 2, 2014. http://www.washingtonpost.com/business/capitalbusiness/rise-in-retaliation-claims-reflect-changing-laws–attitudes-about-workplace-bias/2014/10/31/978628d6-5ee9-11e4-91f7-5d89b5e8c251_story.html
“Preventing Retaliation Claims by Employees.” Nolo. http://www.nolo.com/legal-encyclopedia/preventing-retaliation-claims-by-employees-29599.html
“Retaliation Claims: The High Cost of Getting Even.” United Educators. https://www.ue.org/the-ue-difference/preventable-claims/retaliation-the-cost-of-getting-even/
“Retaliation.” U.S. Equal Employment Opportunity Commission. http://www.eeoc.gov/laws/types/retaliation.cfm
Schraer, Mike. “How to Handle the Cost of Retaliation.” Talent Management, Sept 10, 2013. http://www.talentmgt.com/articles/how-to-handle-the-cost-of-retaliation
This article is intended only as a general discussion of these issues & we cannot guarantee the accuracy thereof. It does not purport to provide legal, accounting, or other professional advice. If such advice is needed, please consult with your attorney, accountant, or other qualified adviser. The Views expressed here do not constitute legal advice. The information contained herein is for general guidance of matter only and not for the purpose of providing legal advice. Accordingly, the information provided herein is provided with the understanding that Deerfield Advisors is not engaged in rendering legal advice. Deerfield Advisors strongly advises that clients and/or the reader of this publication contact an attorney to obtain advice with respect to any particular issue or problem discussed here. Also, please know that discussions of insurance policy language is descriptive only. We strongly advise that one’s individual policy & one’s advisor be consulted regarding this subject matter before any action is taken in any way. Coverage afforded under any insurance policy issued is subject to individual policy terms and conditions. The Deerfield Advisor White Paper Series is a registered trademark of Deerfield Asset Management Inc. DBA, Deerfield Advisors and is produced by Deerfield Advisors for the benefit of its clients, and any other use is strictly prohibited. All rights reserved. Copyright © 2015