Employment Law Report
Retaliation Still the Most Filed Charge with the EEOC: How Employers Can Guard Against Costly Retaliation Claims
The EEOC released its fiscal year charge data and for another year in a row, retaliation is the most filed charge. Behind retaliation are charges for race, disability and sexual discrimination. The full list of charge data is:
- Retaliation: 41,097 (48.8 percent of all charges filed)
- Race: 28,528 (33.9 percent)
- Disability: 26,838 (31.9 percent)
- Sex: 25,605 (30.4 percent)
- Age: 18,376 (21.8 percent)
- National Origin: 8,299 (9.8 percent)
- Religion: 3,436 (4.1 percent)
- Color: 3,240 (3.8 percent)
- Equal Pay Act: 996 (1.2 percent)
- Genetic Information: 206 (0.2 percent)
[These percentages add up to more than 100 because some charges allege multiple bases.]
Any employer who has been through litigation concerning a retaliation claim knows that they are costly to defend, can be extremely factual, and, as a result, difficult to get dismissed before trial. Studies have also shown that juries are more apt to believe a former employee was retaliated against as opposed to discriminated against. B. Glenn George, “Revenge,” 83 Tul. L. Rev. 439, 469 (2008).
How can an employer guard against retaliation claims? The EEOC recommends the following general practices to prevent retaliation claims:
- “Employers should maintain a written, plain-language anti-retaliation policy, and provide practical guidance on the employer’s expectations with user-friendly examples of what to do and not to do.”
- Employers should offer training to all employees about the anti-retaliation policy.
- “Provide tips for avoiding actual or perceived retaliation, as well as access to a resource individual for advice and counsel on managing the situation. This may occur as part of the standard debriefing of a manager, supervisor, or witness immediately following an allegation having been made, ensuring that those alleged to have discriminated receive prompt advice from a human resources, EEO, or other designated manager or specialist, both to air any concerns or resentments about the situation and to assist with strategies for avoiding actual or perceived retaliation going forward.”
- Follow up during the EEO matter regarding any potential concerns with retaliation.
- Require decision makers to identify their reasons for taking consequential actions and ensure that necessary documentation supports the decision.
- Scrutinize performance assessments to ensure they have a sound factual basis and are free from unlawful motivations and emphasize the need for consistency to managers.
- Where retaliation is found to have occurred, identify and implement any process changes that may be useful.
- Review any available data or other resources to determine if there are particular organizational components with compliance deficiencies, identify causes, and implement responsive training, oversight, or other changes to address the weaknesses identified.
The EEOC’s Enforcement Guidance on Retaliation and Related Issues is available here: https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm. The EEOC also recommends the following advice to employers:
- Avoid publicly discussing the allegation;
- Do not share information about the EEO activity with any other managers or subordinates;
- Be mindful not to isolate the employee;
- Avoid reactive behavior such as denying the employee information/equipment/benefits provided to others performing similar duties;
- Do not interfere with the EEO process;
- Provide clear and accurate information to the EEO staff, EEO Investigator, or Judge; and,
- Do not threaten the employee, witnesses or anyone else involved in the processing of a complaint.
If your employee engages in protective activity (participating in an equal employment office process or opposing discrimination), it does not mean that the employee is shielded from ever being disciplined or terminated for conduct warranting action. However, employers are wise to consult legal counsel when making adverse employment decisions to avoid retaliation claims.