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TUESDAY TIP Retaliation


Harassment Retaliation Is Unlawful they cite that "in 2016, the U.S. Equal Employment Opportunity Commission estimated that 75 percent of people who get harassed at work don't file a complaint — one of the primary reasons being that 75 percent of employees who did speak up experienced some form of retaliation."

For the Fiscal Year 2018 the EEOC field offices received 39,469 retaliation-based charges, the highest-level ever as a percentage of total charge filings nationwide (76,418). Retaliation has been the most frequently alleged basis of discrimination in the federal sector since fiscal year 2008. In addition, the number of discrimination findings based on a retaliation claim has outpaced other bases of discrimination. Retaliation now accounts for over 50% of EEOC annual charge filings, for the first time ever.  One out of every two job bias charges filed with EEOC now contains an allegation of retaliation, more than any other type of discrimination.

Legally, retaliation is firing, demoting or harassing workers because they complained or filed a discrimination charge. But as Cal Chamber cites retalitory actions include "ostracism or consistently getting the cold shoulder, repeated ridicule, pay raise denials, criticism for bringing complaints, mockery for bringing complaints, or a reduction in important job duties resulting in a decline in professional development and potential for promotion."

What Constitutes Retaliation

According to the Equal Employment Opportunity Commission (EEOC), it is unlawful to retaliate against job applicants or employees for:

Filing or being a witness in an equal employment opportunity (EEO) charge, complaint, investigation or lawsuit. Discussing employment discrimination with a supervisor or manager. Answering questions during an employer investigation of alleged harassment. Refusing to follow directions from a supervisor that would result in discrimination. Resisting sexual advances or intervening to protect others. Requesting a disability or religious accommodation.Asking managers or co-workers about salary information to uncover potentially discriminatory wages.

The list is not exhaustive. "Other acts to oppose discrimination are protected as long as the employee was acting on a reasonable belief that something in the workplace may violate EEO laws, even if he or she did not use legal terminology to describe it," according to the EEOC.

To minimize exposure to retaliation claims employers should ensure their incentive programs don't unintentionally encourage retaliatory action; tracking employee data about issues like unexcused absenteeism; create and promote a culture of compliance and nonretaliation; create policies that actively encourage employees to come forward; train leaders, HR, managers and supervisors to promote these policies to employees each time there is a complaint or investigation; create an employee complaint hotline; and immediatly take action to investigate when a complaint has been filed.

It is key that employers maintain a culture of mutual respect. Be pro-active. Ensure your HR professionals are trained to recognize situations when retaliation is likely and take swift action to prevent it.

EEOC Tips for Preventing Retaliation

Understand your responsibilities. It is illegal for you to retaliate against (punish) applicants, employees or former employees for:filing a complaint of discrimination with your business;filing a charge of discrimination with a federal, state or local agency;participating in a discrimination investigation or lawsuit (for example, serving as a witness); oropposing discrimination (for example, threatening to file a charge or complaint of discrimination).

Don't take out your frustrations about the complaint on the employee. Treat the employee as if he had never reported discrimination, assisted with a discrimination investigation or lawsuit or opposed discrimination.

Treat employees consistently. Before making employment decisions that may negatively affect the employee, ensure that you are acting consistently with past practice or that you can justify treating the employee differently.

Explain your rules and expectations to employees. Ensure that employees understand your business's discrimination policies. Inform employees that retaliation is illegal and will not be tolerated.

Establish an open door policy. Encourage employees to share any concerns about discrimination with you. Respond promptly and effectively to discrimination questions, concerns and complaints.

Hold employees accountable. Ensure that employee policies are followed and enforced consistently. Hold employees accountable for complying with and enforcing discrimination policies.

Workplace retaliation can be devastating. It is critical for anyone who has a position of influence in the business to understand the rules around workplace retaliation. Rothmeyer Rothmeyer is ready to assist you with tailoring and implementing your non-retaliation policies and proccedures. Contact us today.

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