The Equal Employment Opportunity Commission is seeing a wave of retaliation complaints by employees. Retaliation charges accounted for more than 35% of all charges filed with the commission in fiscal year 2022.
Retaliation means any adverse action that you or someone who works for you takes against an employee because they complained about harassment or discrimination. Any negative action that would deter a reasonable worker in the same situation from making a complaint qualifies as retaliation.
Employees who participate in an investigation of any of these problems are also protected. For example, you cannot punish an employee for giving a statement to a government agency that is looking into a discrimination claim.
Employment law attorneys say that the increase is in part because employees who sue for retaliation have a higher degree of success than those that bring a regular discrimination charge. It’s important that all employers train their managers and supervisors to not retaliate against workers making complaints, as the result can be a costly lawsuit.
Thanks to a precedent-setting case, Burlington Northern & Santa Fe Railroad vs. White, while an employee alleging discrimination must prove that they suffered a “materially adverse employment action,” a retaliation plaintiff only needs to show that the employer undertook some action that may dissuade them from making or supporting a charge.
Employment law experts recommend that employers do the following:
Set clear and unambiguous policies
1. Your company policy should clearly state that retaliation is not permitted.
2. The policy should describe the parameters of inappropriate conduct as well as you can define them.
3. Put the policy in writing.
4. Set reporting and grievance procedures, including the person to whom the employee can report a retaliation complaint.
5. Have staff sign an acknowledgment of receipt of your policy.
Investigate complaints promptly
1. Remember that anyone who participates in an investigation is likely protected from retaliation (not just the employee who makes a complaint, but witnesses as well).
2. Communicate results of the investigation to the grievant.
3. Take effective remedial measures, including carefully reviewing all disciplinary measures before imposing them. You should also ensure that disciplinary actions are consistent with past practices.
Train managers and supervisors
Finally, you should train managers and supervisors and ensure they understand your policies.
Make sure they understand who is protected from retaliation (participants, complainants, and even persons related to the complainant in some cases).
They should also understand what constitutes retaliatory conduct and, if they are unsure, they should speak to your human resources manager.
A final word
Even with your best efforts, an errant manager can breach your policies and land your company in hot water.
That’s why it’s important that you also carry employment practices liability insurance, which may cover the costs of an employee lawsuit, including legal fees, settlements, court judgments and other related costs.
EPLI coverage can protect against a number of complaints, including discrimination (race, sex, disability, etc.), harassment, and more.
Remember: To prevent retaliation, it all starts with setting policies and training your managers. That way, hopefully you can avoid a lawsuit.
Two last tips:
- Include your retaliation policy in your employee handbook. VMA members can get a free employee handbook builder through Mineral HR.
- VMA members get access to a free half hour consult with an employment law attorney.
Contact Shannon Wolford at shannon@visualmediaalliance.org for more information on both these member benefits or to become a member.