Human resource professionals know complying with workplace anti-discrimination laws is important. Equally important is ensuring that employees who complain about perceived discrimination are not retaliated against for doing so, even if the underlying claim is never proved.
Why is this so important? Retaliation is the most common type of claim filed with the Equal Employment Opportunity Commission (EEOC).
“Oftentimes, an employee will be discriminated against first because of a protected characteristic,” says EEOC Commissioner Keith Sonderling. “Then, once they have exercised their right to complain of discrimination or participate in the EEO process, retaliation claims can occur.”
According to the agency’s data, more than half of all charges filed in fiscal year 2021 included a retaliation claim—making it essential for employers to have sound practices in place to prevent retaliation and document the reasons for disciplining and firing employees.
“Employers should seek to be as consistent as possible in applying their employment policies,” says Stephen Gee, an attorney with Fisher Phillips in Detroit. “If an employer has to deviate from a past practice, it should consult with legal counsel to ensure the deviation is justified.”
What are some best practices to avoid retaliation claims? Here are four tips for employers.
Recognize What Qualifies as Protected Activity
The EEOC—as well as other federal, state and local agencies—enforces laws that protect employees and applicants from discrimination based on a variety of characteristics, including age, disability, national origin, race, religion and sex. These laws also make it unlawful for employers to retaliate against workers for bringing such claims.
“Participating in a complaint process is protected from retaliation under all circumstances,” according to the EEOC. Notably, the complaint doesn’t have to be formal to be protected. “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,” the agency says.
An employee’s protected activity can take many forms. Examples include:
- Filing an EEO charge, complaint or lawsuit.
- Serving as a witness or answering questions during an EEO -investigation.
- Reporting employment-related discrimination or harassment to a supervisor.
- Declining to follow directives that would result in discrimination.
- Refusing sexual advances or intervening to protect others from sexual harassment.
- Requesting an accommodation for a disability or religious practice.
- Asking managers or co-workers about salary information to uncover potentially discriminatory wages.
“Employers may mistakenly believe that only full-time, current employees have protections against retaliation,” Sonderling notes. However, these protections apply to job applicants; current full-time, part-time, probationary, seasonal or temporary employees; and former employees covered by EEO laws, regardless of citizenship or work authorization.
Additionally, employees are protected from retaliation when they complain about perceived discrimination against co-workers.
Train Supervisors on -Common Pitfalls
Why are retaliation claims so common? “There are a multitude of reasons,” Gee says. Perhaps a manager has been inconsistent in applying and enforcing the company’s employment policies. Or maybe a supervisor took an employee’s discrimination allegation personally and identified the employee for a subsequent layoff.
“For several reasons, retaliation can be a knee-jerk reaction,” Sonderling explains. No one wants to be accused of wrongdoing. So when an applicant or employee engages in protected activity, such as filing an EEO complaint, it’s natural to take it personally, he says.
Also, an untrained supervisor may see employees who complain as causing problems for the organization and may attempt to deter employees from continuing to participate in the complaint process—or even decide to fire them to remove the “problem” entirely.
“Unfortunately, employers may not realize or remember in the moment that these actions may be unlawful and constitute retaliation under EEO laws,” Sonderling notes.
Retaliation claims are also so prevalent because retaliatory conduct “encompasses a broad range of actions,” he says. Maybe supervisors simply don’t understand what conduct is retaliatory.
Supervisors should recognize that they cannot punish an applicant or employee for participating in the EEO process. This includes participating in an employer’s internal EEO complaint process.
Supervisors and managers may also make the mistake of thinking that only firing an employee counts as retaliation. Sonderling cautions, however, that retaliatory conduct includes much more. For example, retaliation may include the following actions:
- Work-related threats, warnings or reprimands.
- Lowered ratings on performance evaluations.
- Transfers to less prestigious or less desirable positions or worksites.
- Closer scrutiny of the employee’s work than of other employees’ without a legitimate reason.
Establish a Process for Handling Complaints
Employers should consider assigning a designated management official, in-house counsel or an HR staff member to review proposed employment actions and ensure they are based on legitimate nondiscriminatory and nonretaliatory reasons, Sonderling recommends.
Additionally, 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.
“Training can also help ensure that discipline and performance evaluations are motivated by legitimate, nonretaliatory reasons,” Sonderling says.
Create and Follow -Consistent Practices
Consistency is key. Failing to apply policies evenly can lead to perceptions that certain workers are being singled out for filing a complaint or participating in a workplace investigation, Gee explains.
“Employers should ensure they have a strongly written anti-retaliation policy that is communicated to all staff,” he recommends. Employers should also clearly inform employees that retaliation is prohibited and that they should report any perceived retaliatory behavior immediately. All complaints should be promptly and thoroughly investigated, he adds.
Sonderling says policies should be written in plain language and should include the following:
- Examples of retaliatory actions.
- Proactive steps to avoid actual or perceived retaliation.
- A reporting mechanism for raising concerns about retaliation.
- A clear explanation that employees may be disciplined or fired for engaging in retaliatory behavior.
Lisa Nagele-Piazza, SHRM-SCP, is legal content counsel for Fisher Phillips in Atlanta.
Illustration by Adam Niklewicz for HR Magazine.
Disciplining for Legitimate Reasons
Although employers are prohibited from retaliating against workers for engaging in protected activity, employees can still be disciplined or fired for legitimate reasons. Before taking adverse action, employers should ensure the decision is:
- Not based on the worker’s age, disability, national origin, race, religion, sex or other protected category.
- Not based on the worker’s decision to oppose or report discrimination, or to participate in an investigation or lawsuit.
- Consistent with the company’s disciplinary policy or justified when deviating from the policy.
Employers should consider documenting employment decisions to help defend against possible discrimination charges. —L.N.-P.