While employees filed fewer charges of job discrimination in 2014 than the year before, one new statistic from the EEOC should make HR and employers stand up and take notice: More than 2 in 5 charges last year (42%) allege some form of retaliation against the employee for pursuing the discrimination claim.
That percentage is an all-time high (see chart) and retaliation is now the most common EEOC complaint, ahead of race, sex and age discrimination claims.
“Practically, retaliation cases are easier to file and sometimes easier to prove,” says attorney Daniel Kaplan, a partner with Foley & Lardner in Madison, Wis. “Typically, plaintiffs are simply ‘throwing in’ the retaliation claim to buttress their other job-discrimination allegations.”
Advice: Make sure managers know it’s unlawful to try to “get back” at employees who complain about discrimination, safety or financial violations.
The EEOC says employers “may not fire, demote, harass or otherwise retaliate against an individual” for filing a job-bias complaint—either internally or to a government agency.
Bottom line: Before taking disciplinary action against employees who’ve recently complained about job bias, managers should ask themselves these two questions:
1. “Why am I taking this action now?” Is there any connection to the person’s complaint? If the situation smells even a bit like retaliation, a jury could see it that way.
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,” document the basis for your decision before proceeding
Final note: Expect retaliation cases to grow. Juries and judges are much more receptive to retaliation claims than other job-bias complaints. Also, Congress and state legislators have created several new statutory protections for whistle-blowers in recent years.
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