Employee retaliation is the No. 1 claim in the workplace today according to the U.S. Equal Employment Opportunity Commission (EEOC). During 2015, there were a total of 39,757 retaliation charges received, and we can assume that only a fraction of incidents of retaliation were reported by employees to EEOC.¹

This is a staggering 44.5 percent of the total 89,385 workplace discrimination charges received by the EEOC. Race and disability claims, which were next most common, accounted for 34.7 percent (31,027) and 30.2 percent (26,968), respectively.²

Resolving a retaliation claim, or preferably avoiding the occurrence, requires a workplace foundation that gives equal attention to best practice processes and the people in the organization. Key to the process is a clear and unambiguous anti-retaliation policy, understood by all employees and periodically reviewed to keep pace with the changing legal and societal landscape.

The linchpins to “people” risk management are training and culture. Training must be specific to the learning group and provided in the manner and with the frequency required by law.³

Of equal importance is the creation, or hopefully, maintenance of a culture of respect and tolerance within the organization. If claims do occur, organizational leaders need to act deliberately and with compassion.

Here is what can be done to minimize the risk of a claim:

• Develop your anti-discrimination and anti-retaliation policies using available best practices.⁴
• Have the policy reviewed by a labor attorney prior to approval and implementation.
• Conduct annual reviews of the policy to make sure it is up-to-date and reflects any changes in your organization and the law.
• Make a copy of the policy available to all employees. Require a signed acknowledgement of receipt from each staff member.

What can be done for employees:

• Provide training specific to supervisors and staff.
• Create a culture of trust.
• Listen and be aware of the cooperative energy at your organization.
• Ensure managers apply the policy uniformly across the organization.

Here is what can be done if a claim occurs:

• To the extent permitted by law, keep claim reports and investigatory results confidential.
• Conduct a prompt investigation.
• Take appropriate corrective steps if there is evidence that any adverse treatment of an employee may have been prompted by participation in a protected activity. Examples of protected retaliation activities for which there is a basis for charge: threatening to file charges, complaints pursuant to an employer’s internal reporting procedures, or opposition to a supervisor’s order or practice believed to be illegally discriminatory.

Depending on severity, discuss the matter with the responsible individual or individuals, explain why it was inappropriate, and instruct them to cease behavior. If those responsible seem unaware of these responsibilities, appropriate training should be provided. More severe cases may call for disciplinary action for violations of the conduct standards, which can include suspension, demotion, or termination.

• Always consult with your organization’s designated human resources professional, who may consult with legal counsel, before implementing any remedial action.
• When an investigation or charge is closed, continue to monitor to ensure compliance with published policies.

Endnotes and Resources:

¹ EEOC – Retaliation-Based Charges FY1997–2015. Website reference: https://www.eeoc.gov/eeoc/statistics/enforcement/all.cfm.

² EEOC Releases Fiscal Year 2015 Enforcement and Litigation Data. Press release 02/11/2016. https://www.eeoc.gov/eeoc/newsroom/release/2-11-16.cfm.

³ See, for example: California Fair Employment and Housing Act (significant changes effective 04/01/2016). Cal. Code Regs. tit. 2 § 11024(a)(2)(C); (b)(2) (2016). http://www.paulhastings.com/publications-items/details/?id=35bae869-2334-6428-811c-ff00004cbded#_edn12.

⁴ Society for Human Resources Management (SHRM): https://www.shrm.org/templatestools/samples/policies/pages/cms_000551.aspx.

Additional Resources:

https://www.eeoc.gov/eeoc/%20internal/harassment_order.cfm

https://www.eeoc.gov/policy/docs/harassment-facts.html