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Give managers a refresher on retaliation risks

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in Discrimination and Harassment,Employment Law,Firing,HR Management,Human Resources

Employee claims of job discrimination to the EEOC spiked above 99,000 last year, the highest total ever. On Jan. 11, the EEOC released more details (see box below), and those numbers yield three important lessons for employers:

1. Retaliation nation is here to stay. While race discrimination has historically been the most popular federal job bias claims, retaliation took over the top spot in 2009 and expanded that lead in 2010.

Retaliation claims can be brought when a person experiences an “adverse employment action” (firing, discipline, etc.) in reaction to: (1) filing a discrimination charge; (2) complaining to the employer or government agency about discrimination; or (3) participating in a discrimination proceeding, such as an investigation.

To defend against a claim, employers must be able to show the adverse job action occurred for a valid nonretaliatory reason.

Advice: Remind supervisors to be more careful than ever to avoid lashing out in any way against employees who file—or simply voice—complaints of job bias. HR must make sure discipline is being doled out evenly and fairly.

2. Understand the broader interpretation of "disabled." Charges of disability discrimination rose the steepest last year, up by 17% to 25,165 claims.

The main reason: The Americans With Disabilities Act Amendments Act (ADAAA) took effect on Jan. 1, 2009. It broadened the scope of the ADA, making it easier for people with treatable conditions like epilepsy or mental illness to claim they are “disabled” under the ADA and, thus, due certain job protections.

Read 10 key Q&As about compliance with the ADAAA at

3. The best defense is a good offense. Another reason for the uptick in claims: The EEOC became more aggressive in reaching out to workers, teaching them about their job bias rights and ways to file charges.

Employers with sound anti-discrimination policies and practices—and an open-door policy when it comes to complaints—have little reason to fear such outreach efforts.

If you do receive an EEOC complaint, don’t panic (and don’t retaliate!). Read our free primer, How to Respond to an EEOC Complaint.

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