by Catherine Moreton Gray
Retaliation claims—even unfounded ones—are a perpetual concern following adverse employment actions. But there are steps employers can take to protect themselves. Catherine Moreton Gray, BLR’s senior managing editor for human resources and compensation, has some tips from the Equal Employment Opportunity Commission (EEOC).
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According to the EEOC, in 2014, retaliation claims made up 48.4% of all discrimination charges filed under federal civil rights statutes. In recognition of the growth in the number of these claims, and the fact that the EEOC has not updated its guidance on retaliation since 1998, it released a proposed enforcement guidance on retaliation.
The guidance sets out the standards for proving retaliation under the various civil rights laws, including Title VII of the federal Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Rehabilitation Act, and the Equal Pay Act.
To establish a claim of retaliation, the employee must show that (1) he or she engaged in protected activity through participation in equal employment opportunity (EEO) activity or by opposing discrimination; (2) the employer took adverse action against the employee; and (3) there is a causal connection between the protected activity and the adverse action.
The guidance explains each of these elements and provides examples of conduct that is and is not retaliatory in the view of the EEOC. The guidance also makes it clear that an employee need not prove an underlying discrimination claim to be successful on a claim of retaliation.
The proposed guidance offers tips or best practices for employers to help avoid retaliation claims. First, the EEOC suggests that employers should establish and maintain a written, plain-language antiretaliation policy.
The policy should (1) explain what retaliation is and provide examples to help managers and supervisors understand the types of conduct that might be retaliatory; (2) spell out proactive steps that can be taken to avoid actual or perceived retaliation; (3) spell out a reporting mechanism for employee concerns about retaliation; and (4) provide a clear explanation that retaliation will result in discipline up to and including termination.
Employers should make sure the antiretaliation, as well as other written policies, doesn’t include language that might deter an employee from making a complaint. For example, a provision that says an employee will be subject to discipline up to and including termination if a discrimination complaint proves to be false would be viewed as a deterrent.
Second, the EEOC suggested the following considerations for training:
- Train all managers, supervisors, and employees on the employer’s written antiretaliation policy;
- Send a message from top management that retaliation will not be tolerated, and provide information on policies and procedures;
- Tailor training to the existing workforce to cover any areas where there may be issues or potential problems;
- Provide examples of retaliatory conduct and information on how the same situations could have been handled to avoid retaliation claims;
- Extend training to those who do not regularly work in the office;
- Educate employees on the procedure for making a complaint and how complaints will be handled; and
- Encourage overall efforts to encourage workplace civility, which, according to the EEOC, can help reduce incidents of retaliatory behavior.
Third, when a complaint is made and an investigation is under way, the EEOC recommends that everyone involved be reminded of the employer’s antiretaliation policy and complaint procedure. Finally, the EEOC recommends that the employer check in with managers, supervisors, and employees while a discrimination complaint is pending so that any perceived retaliation can be addressed and, if necessary, corrected.
For more information, read the entire guidance document here.