I took a Louisville Slugger to both headlights….

by Terri Swain

Retaliation.

It’s funny in a country song, but in the workplace…it can mean serious trouble. The EEOC reports that in 2010, that for the first time in its history, Retaliation Charges were the most filed EEOC charge – representing 36.3% of all charges filed – that’s greater than 1 in 3!!!

As a former investigator with the EEOC, I’m here to tell you that claims of retaliation are taken VERY SERIOUSLY by the Commission.

What does the EEOC look for when investigating a charge of retaliation?

First, did an employee protest protected discrimination either verbally or in writing through an internal complaint mechanism or with a local, state or federal agency? Or was the employee involved in an investigation as a witness involving protected discrimination claims? Just stating unfair treatment in the workplace is not enough – the employee must state that the treatment was based on race, color, sex, national origin, religion, age, disability or genetic history – any of the legally protected statuses.

And GUESS WHAT? The actual claim does NOT have to be valid to have a VALID case of retaliation. The regulations recognize that the average person does not have knowledge of the law. The employe has a RIGHT to make a claim of discrimination and the employer has a RESPONSIBILITY to look into the claim.

Secondly, was there an adverse employment action? Was the employee fired? Demoted? Transferred? Isolated?

Thirdly, was there a connection between the complaint and the adverse employment action? This is generally shown by timing or anecdotal evidence.

What are best practices in avoiding retaliation claims in your organization?

  • Create a true open door culture within your organization. Welcome employee suggestions and complaints so they aren’t fearful of losing their job if they do.
  • Take all discrimination complaints seriously and document everything done to address the complaint.
  • Train your managers and supervisors in EEO laws, and particularly the retaliation piece of the law.
  • When investigating a complaint internally, let the employee and witnesses know that there will be no retaliation for participating. Give them a contact for reporting any alleged retaliation.
  • Loop around with the person who has filed the complaint to make sure that everything is Ok for them and if not, to let you know.
  • If employees have to be separated due to harassment on the job, never make it worse for the person who complained (i.e. moving them to another department).
  • If you are in the middle of a disciplinary process when complaints of discrimination are made, tread lightly. Make sure that you separate the two issues out but handle them both seriously and promptly.

It’s human nature to be upset when someone has accused you of discrimination. It’s high risk to take it personally and act out on it.