What’s the #1 Way Employers Get in Trouble?

Posted by: Gail Cecchettini Whaley, J.D. on Thursday, May 30, 2019

It may surprise you to learn that the highest percentage of federal claims filed by employees are not due to harassment issues, but about retaliation. That’s right – year over year, the majority of all claims filed with the Equal Employment Opportunity Commission are for retaliation.  Often these retaliation claims stem from harassment claims and other claims which an employer doesn’t handle properly. 

employees arguing and getting physical

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 of retaliation received, 50.3 percent of all charges received from the Golden State.

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.

n talk with one of our HR Advisors by calling 800 399-5331. Interested in membership? Contact us.

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