Posted on January 5, 2015

An Eye for an Eye: Dealing with Workplace Retaliation

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. In 2010, charges for allegations of workplace retaliation surpassed the number of charges for the previously-leading category of racial discrimination charges. Since that time, the percentage of retaliation claims has continued to increase its lead in number of charges.

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 because he or she engaged 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 an employer to protect itself from claims of retaliation?

The first step is to minimize the organization’s risk of EEOC claims in general. It is critically important to treat employees consistently and in accordance with company policy with all aspects of employment, including hiring, pay, benefits, promotion, demotion, disciplinary action, termination and so on. It is also imperative for the management team to establish a working environment that does not condone harassment or bullying, especially based on the victim’s protected class status.

Developing and communicating anti-harassment and anti-bullying policies alone is simply not sufficient for an employer to mitigate its risk in this regard. It takes complete support and behavior modeling from the senior management team in order to establish a workplace free from discrimination, harassment and bullying.

The second step is to adequately investigate all claims and allegations of discrimination, harassment and bullying, as well as to ensure that no employee within the organization retaliates against the claimant or others who participate in the investigation. The law protects against retaliation even when such retaliation is inadvertent or unintended in nature. Therefore, it is imperative that employees and managers keep the idea of retaliation at the forefront of their thoughts when working through internal investigations.

The company’s anti-discrimination, anti-harassment and anti-bullying policies should all contain a provision prohibiting retaliation against complainants or those who participate in the investigation. Additionally, once a complaint is made, the allegation should be kept confidential to the extent practical so that less people within the organization have to opportunity to retaliate against the claimant.

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 or location, 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.

Another item to consider is 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.

Reduce your exposure

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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