By Catherine Padalino
Apr. 29, 2011
According to recent Equal Employment Opportunity Commission data on workplace discrimination complaints, retaliation charges have surpassed racial discrimination charges for the first time in the organization’s history.
For human resources professionals, now is the time to read up on the particulars of retaliation claims, increase efforts to discourage behavior that could result in complaints and implement practices for defending against potential retaliation claims.
For starters, what is retaliation? Retaliation occurs when an employer takes negative action against an employee who has alleged or reported unlawful activities, such as harassment or discrimination.
The retaliatory action could be a negative evaluation, denial of a promotion or dismissal of the employee who filed a complaint. As a result, the employee alleges that the company is unfairly “punishing” him or her for the initial complaint or action.
Such lawsuits are showing a dramatic increase. Retaliation charges increased by 55 percent between 2000 and 2009, according to the EEOC.
Thirty-six percent of the total bias charges filed with the EEOC in 2010 were retaliation charges. Why is the EEOC experiencing a trending increase in retaliation cases?
The challenging economy continues to present difficulties to terminated employees seeking new positions. It may take longer for individuals to find a new position, which may come with a lower salary, making it more likely for employees to consider a retaliation charge.
Additionally, such charges tend to be easier to prove and more likely to go to trial, so plaintiffs’ attorneys may opt for these charges versus other types of discrimination. It is also worth noting that a retaliation claim may survive summary judgment even when the underlying discrimination claim is not proven.
The recent U.S. Supreme Court case Thompson v. North American Stainless, illustrates one relevant incident. Eric Thompson was terminated three weeks after his fiancée, who worked for the same company, filed a complaint with the EEOC accusing her supervisor of gender discrimination.
In a ruling that overruled a federal appeals court (which barred the retaliation case from going forward) Supreme Court Justice Antonin Scalia wrote that the plaintiff “is not an accidental victim of retaliation … injuring him was the employer’s intended means of harming” his fiancée.
This 2011 case is the most recent in a series of rulings by the court, which demonstrate that witnesses and complainants to discrimination are protected from retaliation, meaning that charges of this nature will continue.
Yet employers aren’t helpless. They can take steps that may prevent discrimination and retaliation:
• Develop a clear discrimination policy. Employers should consider working with legal counsel to develop a policy that clearly defines and explicitly prohibits harassment and discrimination—and strictly enforce that policy. Additionally, the employment handbook should prohibit retaliation against employees for filing a claim, witnessing a claim or being related to the complainant. Companies should also consider providing information that defines retaliation and explains how to file a claim and what to expect afterward. Finally, if an employee complains of employment-related retaliation, the charges should be taken seriously and investigated thoroughly (and immediately).
• Provide thorough training. Most importantly for HR professionals, managers and supervisors should undergo training to make them aware of retaliation and discourage behavior that could open the company up to legal action. To an employee who feels threatened because of a prior complaint, even seemingly harmless statements or gestures can be interpreted as retaliation. Training may include annual or semiannual refresher courses, and sessions should be documented as proof of the company’s efforts to prevent discriminatory actions.
• Explore insurance protection. Companies may consider reducing their overall exposure to costly retaliation-related employment charges, claims and lawsuits by purchasing employment practices liability insurance, which is offered by many insurance companies. Besides providing protection for employment-related claims, many insurers also offer resources like expert defense firms and anti-discrimination training to help companies reduce these risks.
A retaliation charge can cost a company a great deal and also cause serious harm to morale. There may be costs associated with an investigation or a liability lawsuit, and such a charge may result in reputational damage to the company. Effective training and well-designed HR policies are critical in helping to prevent retaliation and may also bolster a company’s defense if a charge is made.
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