April 2007: Business Tools
HUMAN RESOURCES
Restraint can help avoid retaliation claims
The numbers are alarming. Despite all the knowledge and
understanding of the inherent risks that employers have,
federal employment discrimination claims are climbing.
Employment claims are rising nine times faster than any other
federal civil litigation, and the one rising faster than all
the rest is retaliation claims. A retaliation claim alleges
that an employee suffered an adverse employment action because
the employee engaged in protected activity, i.e. the filing of
a discrimination complaint under federal or state law. A
review of the Equal Employment Opportunity Commission (EEOC)
numbers shows that retaliation claims have doubled over the
past 10 years, and now account for 25% of all claims filed with
EEOC.
This is serious business for employers because, sadly,
employers can actually win the original discrimination
allegation but still lose a retaliation claim.
As an example, assume that a female employee believes she has
been discriminated against because she didn’t get the
same percent of pay increase at annual review time as men in
the department. The female employee may have had performance
issues during the year or already be paid higher in the pay
range than the men. But she doesn‘t consider these
sufficient reasons for receiving a lesser amount. The employee
files a complaint with EEOC or the state agency alleging that
she has been discriminated against on the basis of sex.
In addition to describing the situation relative to pay, she
tells the agency that ever since she raised this issue of her
pay with the organization she has been treated badly. She
declares that whenever she walks into her boss’s office,
he says, “What have you come to complain about
today?”
She relates that when she asked for vacation time to visit her
family, she was denied the time off even though she had accrued
vacation time on the books. And she also says that her
supervisor has been checking on her work and indicating his
dissatisfaction with almost everything she does. As a result of
these comments, a retaliation charge is added to her
complaint.
In the scenario above, after investigation, no grounds are
found to support the discrimination charge. The reduced pay
increase is found to be unrelated to the employee’s
gender. Evidence is uncovered, however, of retaliation by the
supervisor. The penalties for this alone can be crushing.
According to attorneys, the largest punitive damages awarded in
discrimination actions are usually for retaliation.
So what should employers do to protect themselves? According
to an article written by Lloyd Zimmerman for LexisNexis,
“If you are mad about a discrimination charge, vent only
to your lawyer. Outrageous statements that you make to your
lawyer when you are mad are completely confidential.”
In other words, be careful what you say and to whom. Colin
Walker, an attorney with Fairfield and Woods, suggests
these steps:
-
HAVE AN ANTI-RETALIATION POLICY clearly stating that
employees will not be retaliated against for complaining
about discrimination, harassment or other unlawful activity.
-
PROVIDE CLEAR MECHANISMS for complaints and investigations.
-
INVESTIGATE CLAIMS OF DISCRIMINATION and harassment promptly
and thoroughly; follow up with the complaining employee and
make sure the issues has been resolved.
-
AS PART OF ANY INVESTIGATION, be sure to counsel any accused
parties that retaliation of any kind is prohibited, and
advise the complaining employee to promptly report any
further complaints of alleged retaliation or other wrongful
conduct.
-
CAREFULLY DOCUMENT the reasons for em-ployment action taken
with respect to all employees, but particularly those who
have complained about discrimination and/or harassment.
Let me add a couple more to that list:
-
DON’T ASSUME that supervisors and managers know what
actions are covered by the word retaliation. Be specific
about what statements, actions, and decisions must be
avoided.
-
CHECK IN FREQUENTLY with the employee who complained;
document it when they say things are going well.
-
HAVE A SECOND-LEVEL REVIEW of any employment decision made
regarding the complaining employee. This should protect the
organization from the decisions of the supervisor who is
likely very upset with the employee.
Retaliation complaints because of small slights or less social
interaction will likely not cause an employer to lose a case.
But it is a short distance between those actions and decisions
not to promote, to give a smaller raise, or to bad-mouth an
employee requesting a transfer.
These may be retaliation and they can cost the employer time,
reputation, employee morale, lots of money, and copious amounts
of grief.
— Judy Clark,
SPHR
CEO, HR Answers
jclark@hranswers.com
