In early March, the U.S. Equal Employment Opportunity Commission (EEOC) updated its enforcement data to include statistics from fiscal year 2015 (FY2015). For the sixth year in a row, retaliation claims topped the list of all charges filed with 39,757, representing nearly 45 percent of all charges filed in FY2015. What is really concerning is that, while retaliation claims have nearly doubled since 1998, the growth in claims is expected to continue, especially in light of the EEOC’s recently released proposed guidance that would make it easier for employees to prove their claims.
Before talking about steps employers can take to help avoid claims, it is important to understand what elements form the basis of a retaliation claim and in what context they arise.
Generally, to establish a claim for unlawful retaliation, an employee must show that:
- The employee was engaged in protected activity;
- The employer took some adverse action against the employee; and
- There was a causal connection between the protected activity and the adverse action.
To establish that the employee was engaged in protected activity, an employee must show that he or she:
- Participated in an activity protected by law (i.e., filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the applicable employment law); or
- Opposed an unlawful employment practice prohibited by law (i.e., making complaints to management, protesting against discrimination in general, or expressing support of co-workers who have filed charges of discrimination or harassment).
Let’s examine the context in which such claims arise. The all-too familiar situation leading up to a potential retaliation claim plays out in businesses every day and is one of the most difficult situations for employers to manage.
Consider this scenario: An employee in a protected class has performance issues, and her supervisor is trying to work with her to correct her performance. The employee feels the supervisor is singling her out for harsh treatment and files a harassment complaint against the supervisor (protected activity). Company management conducts an internal investigation and finds no evidence of harassment. This information is reported back to both parties with the expectation that they both “get back to work.” By this time, there are hurt feelings (on both sides), the same performance issues remain, and the employee and supervisor are so wary of each other that even the most innocent comment or piece of constructive performance feedback is amplified. The environment is becoming more and more toxic. If the supervisor moves forward with corrective action to manage performance and/or the employee feels that the environment has turned “hostile,” the end result can be a retaliation claim. Sadly, this situation could have been prevented.
Six Things You Can Do
To prevent a similar scenario in your company and mitigate your risk of claims, follow these six steps:
- Create an inclusive company culture that is respectful of others, has strong core values, and has zero tolerance for discrimination and harassment. Leadership starts at the top. Create a culture where employees feel that their voices are heard, there is mutual trust, and they know the company does not tolerate discrimination and harassment. When employees see that the leaders of a company are committed to such principles, they are less likely to engage in behaviors that could be viewed as discriminatory or harassing conduct.
- Establish clear goals, objectives, and performance standards, and regularly review performance. When employees know how their work fits into the organization and receive regular feedback relating to those goals, then performance discussions are productive and focused on the job, not the person. The employee “owns” his or her performance.
- Know and understand the applicable antidiscrimination laws affecting your company. Have a good understanding of the various federal, state and, in some cases, local antidiscrimination laws that apply to your company. Many state antidiscrimination laws have a lower employee threshold count for coverage than their federal counterpart and may also have additional protected classes/characteristics.
- Draft and implement a comprehensive antidiscrimination and harassment policy, with company support systems reinforcing that policy. Ensuring that employees know what you expect of them goes beyond the goal-setting outlined in the second step. Develop a comprehensive policy explaining what constitutes unlawful discrimination and harassment, how employees can report violations, and how the company will respond to complaints of discrimination.
- Develop and institute an antidiscrimination and harassment training program. Training all employees, not just supervisors, on this important topic is a key element of your overall program, and you should ensure that the training reinforces your company culture and expectations about employee behavior towards each other. Make the training a regular part of your program to refresh your culture and values system and conduct it at least annually. Note that some states, like California, require employers to conduct harassment training for supervisors every two years. Address potential issues immediately and completely.
Doing what you can to make sure that your company is not one of the EEOC’s statistics next year and keeping a positive company culture is just good business.
Original article was provided by ThinkHR, and can be found here. Want more access to ThinkHR resources, including the live HR Hotline and employee handbook builder? Sign your nonprofit up for a free 30-day trial at http://www.chooseust.org/thinkhr/.