Five Steps to Help Prevent Retaliation Claims

Is Your Business Prepared to Prevent Retaliation Claims?

The Equal Employment Opportunity Commission (EEOC) recently published its charge statistics for Fiscal Year 2017. Retaliation claims were the most overwhelmingly common claim, highlighting that businesses continue to make missteps when responding to employee complaints.

EEOC FY 2017 Report 

In total, 84,254 workplace discrimination charges were filed with the EEOC nationwide during fiscal year (FY) 2017. The agency obtained $398 million for victims in the private sector and state and local government workplaces through voluntary resolutions and litigation. 

The EEOC’s FY 2017 data reveals that retaliation was the most frequently filed charge filed with the EEOC, followed by race and disability. Notably, the agency also received 6,696 sexual harassment charges and obtained $46.3 million in monetary benefits for victims of sexual harassment.

Below is a breakdown of the charges by bases alleged, in descending order:

• Retaliation: 41,097 (48.8 percent of all charges filed)
• Race: 28,528 (33.9 percent)
• Disability: 26,838 (31.9 percent)
• Sex: 25,605 (30.4 percent)
• Age: 18,376 (21.8 percent)
• National Origin: 8,299 (9.8 percent)
• Religion: 3,436 (4.1 percent)
• Color: 3,240 (3.8 percent)
• Equal Pay Act: 996 (1.2 percent)
• Genetic Information: 206 (.2 percent)

Preventing Retaliation Claims

To protect your business from retaliation claims, it is imperative that supervisors and managers understand what constitutes unlawful retaliation. Retaliation occurs when an employer unlawfully takes action against an individual for exercising rights protected by federal statutes, such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. In general, a retaliation claim has three elements: the individual either “participated” in EEOC activity or otherwise “opposed” discrimination; the employer took adverse action against the individual; and a causal connection exists between the protected activity and the adverse action.

Human nature can help explain why retaliation claims are so common.  Employees who complain about discrimination or harassment are often on the lookout for any sort of adverse treatment. Accordingly, any perceived slight, justified or unjustified, may lead to a retaliation complaint. At the same time, the employee accused of discrimination or harassment may resent having their professionalism and integrity questioned and have a hard time working with the accuser as if nothing happened.

Thankfully, there are several steps that businesses can take to avoid retaliation claims. Below are a few examples:

(1) Implement a strong anti-retaliation policy: Make sure your employee handbook and all other compliance policies contain a clear, written prohibition of retaliation.

(2) Establish a clear complaint process: Employees and managers alike should understand the proper process for dealing with a discrimination claim, including the procedures for both filing and investigating a complaint.

(3) Follow through with all investigations: Create a corporate culture in which all complaints are taken seriously and investigated promptly. Uniform policy enforcement can go a long way in defeating claims of discrimination and retaliation.

(4) Document performance issues: Carefully record (in writing) all employee performance evaluations, particularly when problems arise. This evidence can help substantiate that your business had a legitimate reason to take disciplinary action should an employee later file a retaliation claim.

(5) Take preventive measures: It is always a good idea to be honest and straightforward with employees when making employment decisions. Also, if an employee has lodged complaints about a supervisor, it may be advisable to assign decision-making authority on personnel issues to another staff member in order to deter a retaliation claim down the road.

Of course, involving legal counsel in the investigation and resolution of discrimination claims can also help avoid a potential retaliation lawsuit. It is also advisable to work with a knowledgeable employment law attorney when implementing an anti-retaliation policy.

Do you have any questions? Would you like to discuss the matter further? If so, please contact me, Sean Dias, at 201-806-3364.