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The #1 Way Employers Get in Trouble? Retaliation

Posted by: Gail Cecchettini Whaley, J.D. on Wednesday, May 1, 2019 at 12:00:00 am

employees arguing and getting physicalWhat’s the #1 Way Employers Get in Trouble?  

It may surprise you to learn that the number one type of federal employment claim is not harassment, it’s retaliation.  That’s right – year over year, the majority of all claims filed with the Equal Employment Opportunity Commission are for retaliation.  

The Equal Employment Opportunity Commission (EEOC) has released detailed breakdowns of the 76,418 charges of workplace discrimination the agency received in fiscal year (FY) 2018.

The breakdown of charges received by the EEOC are as follows:

  • Retaliation: 39,469 (51.6% of all charges filed)
  • Sex: 24,655 (32.3%)
  • Disability: 24,605 (32.2%)
  • Race: 24,600 (32.2%)
  • Age: 16,911 (22.1%)
  • National Origin: 7,106 (9.3%)
  • Color: 3,166 (4.1%)
  • Religion: 2,859 (3.7%)
  • Equal Pay Act: 1,066 (1.4%)
  • Genetic Information: 220 (.3%)

These percentages add up to more than 100 because some charges allege multiple bases.

Retaliation is also the number one EEOC charge received from the state of California with 2,183 charges or retaliation received, 50.3 percent of all charges received from the Golden State.

Sexual Harassment Charges Still on the Rise

The agency also received 7,609 sexual harassment charges - a 13.6 percent increase from FY 2017 - and obtained $56.6 million in monetary benefits for victims of sexual harassment. 

Takeaway: It’s HOW employers handle a complaint that gets them into trouble!

Preventing Retaliation Claims

The EEOC has information on best practices in dealing with retaliation.  These include:

  • Maintaining and distributing a non-retaliation policy;
  • Creating effective complaint procedures that encourage employees to feel comfortable reporting instances of misconduct;
  • Providing training to all employees that retaliation is not permitted- - and specifically training managers and supervisors as to how to respond to complaints and prevent retaliation.

Managing Performance after a Complaint

If your organization has received a harassment or discrimination complaint from an employee, carefully review future discipline and termination decisions - - especially those taken shortly after the employee complains. 

You can still manage the performance of individuals that have complained, but objective documentation of performance problems is critical, and its best to have a second set of eyes on the discipline.

As the EEOC states, the filing of a complaint does not give the employee permission “to neglect job duties, violate employer rules, or do anything else that would otherwise result in consequences for poor performance evaluations or misconduct. [E]mployers remain free to discipline or terminate employees for poor performance or improper behavior, even if the employee made an EEO complaint.”

However, “If a manager recommends an adverse action in the wake of an employee's filing of an EEOC charge or other protected activity, the employer may reduce the chance of potential retaliation by independently evaluating whether the adverse action is appropriate.”

Need help with performance related issues? Members of CEA can talk with one of our HR Advisors.  Interested in membership? Call 800 399-5331 or email us.

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