When it comes to discrimination, retaliation is still the No. 1 risk

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in Discrimination and Harassment,Human Resources

Hopefully, most supervisors know it’s illegal to discriminate against employees and applicants because of their race, age, sex, religion or disability. But apparently fewer know that the same federal laws also make it illegal to retaliate against people for voicing complaints about such discrimination.

For the third year in a row, retaliation is the No. 1 type of job discrimination claim filed with the EEOC. Employees submitted 37,836 retaliation claims in 2012. That’s only a small increase from 2011, but up more than 100% since 1998.

Why the jump? The Supreme Court rewrote the definition of “retaliation” a few years ago, making it easier to get retaliation lawsuits into court. And now many employees tack on retaliation claims to their age-, sex- or race-bias complaints to the EEOC.

EEOC rules clearly say that employers, “may not fire, demote, harass or otherwise ‘retaliate’ against an individual for filing a charge of discrimination, participating in a discrimination proceeding or otherwise opposing discrimination.”

Advice: Don’t give employees any reason to file retaliation claims. Before taking disciplinary action against people who’ve complained about discrimination (either formally or informally), supervisors and HR should ask themselves these two questions:

  1. “Why am I taking this action now?” Scrutinize the reason and timing of the action. Is there any connection to the person’s complaint? If it smells even a bit like retaliation, a jury could see it that way, too.
  2. “Would I take this action with my best employee?” If your answer is “no,” you could be open to a retaliation charge. If your answer is “yes,” make sure that you document the basis for your decision before proceeding.

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