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A respectful culture where open communication regarding diversity and inclusion is encouraged is just one element of an effective anti-retaliation program, according to Sharon L. Sellers, SHRM-SCP, president of SLS Consulting LLC in Santee, S.C., and director of the South Carolina Society for Human Resource Management (SHRM) State Council.
“In addition to culture, an effective program should include specific elements such as a clearly written policy, training for employees as well as management, and prompt and detailed investigations,” she said in written testimony to the Equal Employment Opportunity Commission (EEOC) for its June 17, 2015, hearing on retaliation. Maintaining confidentiality during investigations is important, too.
Speaking on behalf of SHRM, Sellers said that an effective anti-discrimination culture can include:
“Delays in conducting investigations often lead to additional complaints of retaliation,” Sellers added. “With delayed or no communication that an investigation has begun, complaining parties may become hypersensitive to reactions from employees or supervisors, even from those who have no knowledge of the complaint.”
She noted, “The reactions may actually be retaliation or they may just be daily interactions that are suddenly perceived as retaliatory. Many of these situations can be avoided if the investigation is conducted and a determination is made as quickly as possible.”
Sellers further recommended that employers keep the details of a complaint as confidential as possible to minimize the risk of retaliation.
It’s also important for the employer representative—HR and/or the employee’s supervisor—to periodically follow up with the complaining party to determine whether the behavior has stopped if the wrongdoer is still employed with the company, and to ensure that the complaining party is not experiencing any retaliatory behavior, Sellers observed.
However, part of the rise in retaliation claims may be out of an employer’s hands, suggested Karen Buesing, an attorney with Akerman LLP in Tampa, Fla. (Retaliation claims rose from 18,198 in 1997 to 37,955 in 2014.)
She testified that it is “human nature to be annoyed, upset and even angry with someone who accuses you of wrongdoing, and that there would be a tendency to want to get even. Therefore, one would find it plausible—maybe even probable—that a supervisor would retaliate against a complaining employee.”
But she said there is a “flip side of human nature. It is also human nature to be annoyed, upset and even angry with your supervisor when your own perception of your performance is excellent but your supervisor’s is not. Indeed, it is natural to deflect blame rather than accept one’s own shortcomings. Accordingly, is it not equally plausible—and indeed even probable—that an employee actually ‘retaliates’ against the supervisor by filing a retaliation charge in such circumstances? And why wouldn’t an angry employee do so, since Title VII’s protections under the participation clause extend to a charging party regardless of whether the underlying charge is false or even brought in bad faith?
“There is simply no downside for an employee to falsely claim discrimination when facing discipline or termination, and then claim retaliation when the discipline or termination takes place. The best defense is a good offense. Hence the explosion in retaliation claims,” she remarked.
Retaliation Against HR
That said, HR in particular is vulnerable to retaliation, according to Lisa Banks, an attorney with Katz, Marshall & Banks LLP in Washington, D.C. She testified that “There would be significant value in the EEOC weighing in on the plight of employees working in a company’s human resources function, who are often left wholly unprotected from retaliation under Title VII and related anti-discrimination statutes.”
She noted that, “In their daily job duties, HR employees are responsible for bringing discrimination and harassment complaints to management, investigating those complaints, and counseling individual managers regarding wrongdoing. If HR employees are too passive, they may be blamed for letting personnel disputes fester; if they act aggressively, however, they may face retaliation from unhappy executives.”
Banks testified, “A number of courts have held that HR employees who report wrongdoing in their roles as HR and compliance officials are not protected from retaliation and must ‘step outside’ that role in order to be protected. This doctrine has had enormous impact on a significant number of employees, who remain unprotected from retaliation, which might flow naturally as a consequence of their job functions. The commission should ensure that its revised retaliation guidance clarifies the circumstances under which an HR employee engages in protected activity under Title VII and related statutes.”
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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