Ever since the EEOC began tracking discrimination complaints, race bias has been the most popular claim. Not anymore. Claims of employer retaliation now top the charts—33,613 claims in fiscal 2009—with race running a close second. Retaliation complaints have tripled since 1992.
This means managers, supervisors (and you) need to be more careful than ever to avoid lashing out against employees or applicants who file—or simply voice—complaints of discrimination.
Why the trend? Rising layoffs have triggered more disgruntled ex-employees. Attorneys have become more aggressive in adding retaliation claims onto employees’ age, sex and race bias claims. Plus, retaliation has become easier to prove in court since a 2006 Supreme Court decision adopted a broader definition of retaliation.
Example: Two black firefighters in Camden, N.J., claimed that right after they filed a race discrimination complaint, they were subjected to unwarranted discipline, reassignment of their duties and disappearing overtime.
As in many retaliation cases, the initial discrimination complaint (race, in this case) became a side-note to the retaliation charge. Before it went to trial, the city was compelled to settle for $1.15 million.
Background: Retaliation claims can be brought when a person experiences an “adverse employment action” (firing, discipline, demotion, etc.) in reaction to: (1) filing a discrimination charg; (2) complaining to the employer or a government agency about discrimination; or (3) participating in a discrimination proceeding, such as an investigation.
To defend a claim, employers must be able to show that the adverse job action occurred for a valid, nonretaliatory reason.
How to comply: A crafty plaintiff’s attorney can use seemingly unrelated incidents—a disciplinary action here, a evaluation there—to paint a picture of retaliation for a jury.
Your best bet is to recognize potentially adverse actions before acting, then examine whether the employee could raise retaliation charges.
First, see if the employee has filed any complaints—internally or with an agency or the courts. If so, re-examine the move and the motives behind it. If, for example, the adverse action affects everyone in a certain job category, someone who files a complaint will have a hard time claiming she was singled out.
No adverse job action should be carried out by a single individual on short notice with no consultation.
Have procedures in place to discipline employees. Use them fairly. Review and update them regularly and document each step of the way.
Final point: Don’t be paralyzed. Filing a complaint doesn’t make an employee untouchable. Employers must, however, be prepared to defend their actions in court.
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