Retaliation is the most frequent type of claim filed with the Equal Employment Opportunity Commission. In fact, retaliation claims were included in over half of all charges filed with the EEOC in fiscal year 2021. Given the prevalence of real or perceived retaliation being reported to the EEOC, it is important to review best practices for avoiding retaliation claims. In the following, we summarize the four best practices identified in the SHRM article, “How to Avoid a Workplace Retaliation Claim,” by Lisa Nagele-Piazza.
Recognize What Qualifies as Protected Activity Under Federal, State, and Local Law
There are a variety of laws in place to protect individuals from discrimination based on protected characteristics, such as race, religion, sex, age, and disability status. These laws also protect individuals from facing retaliation for participating in any formal or informal complaint process. It is important to note that all employees, job applicants, and former employees covered by equal employment opportunity laws receive protections against discrimination and retaliation. This means that these individuals cannot be retaliated against for filing an EEO charge, participating in an EEO investigation, reporting employment-related discrimination or harassment, requesting reasonable accommodation, or refusing to take part in discriminatory practices, among other protected activities. Stay informed on all anti-discrimination and retaliation laws that apply to your organization.
Train Supervisors on Common Pitfalls
There are many different forms of retaliatory conduct under EEO legislation. Examples of retaliatory conduct include being fired, receiving threats or reprimands, being transferred to less desirable positions or worksites, and receiving poor performance ratings despite adequate performance. According to the article, there are many reasons why retaliation claims are so common. Supervisors often lack awareness of the full range of protected activities or retaliatory practices identified by EEO legislation. For example, a supervisor may not realize that individuals have the right to file discrimination claims in good faith even if the claim is ultimately unfounded. Furthermore, retaliation is often an impulsive reaction to accusations of wrongdoing. Although it is natural to take accusations personally, supervisors must act carefully to avoid retaliatory conduct. Proper training will provide supervisors with the knowledge and tools to make sound decisions if and when an applicant or employee engages in a protected activity.
Establish a Process for Handling Complaints
Employers must handle EEO complaints consistently and professionally. The article states, “…management and human resource professionals should be trained on how to properly and proactively respond when employees raise concerns about potential EEO violations, such as asking clarifying questions and seeking additional information to ensure they fully understand the employee’s concern.” The article also recommends that employers assign a designated employee to review proposed employment decisions to ensure that they are legitimate and not based on discriminatory or retaliatory motives.
Create and Follow Consistent Practices
Maintaining consistent employment practices is crucial to preventing claims of discrimination and retaliation. Employment policies must apply evenly to all employees in order to avoid the perception that certain individuals are being discriminated against or are facing retaliation for engaging in a protected activity under EEO legislation. Furthermore, employers must clearly communicate that retaliation will not be tolerated and should provide employees with a mechanism for reporting retaliation. Finally, anti-discrimination and anti-retaliation policies must be clearly communicated in writing and through training.
In summary, retaliation is the most common type of claim filed with the EEOC for a variety of reasons. Retaliation is a broad term that covers a variety of adverse employment decisions. Creating sound employment policies and procedures and providing comprehensive training to employees at all levels of your organization are important steps for preventing workplace retaliation claims.
To further avoid issues, learn How to Have Difficult Conversations with Employees.