Every year since 2009, employees have filed more retaliation complaints with the federal Equal Employment Opportunity Commission (EEOC) than any other type of employment discrimination claim. Granted, many EEOC complaints allege retaliation along with other types of discrimination. Yet, the percentages have steadily increased each year and, in 2020, retaliation comprised 56 percent of all EEOC claims.
Why Are Retaliation Claims So Prevalent?
As with most things legal, there are a variety of reasons for the prevalence of retaliation complaints. First, the elements of retaliation are straightforward, as follows. The employee has engaged in “protected activity,” which includes raising a complaint of a potential legal violation. An adverse employment action occurred, such as, a disciplinary action or termination, and there is a nexus between the two. For example, Leticia complained that her supervisor sexually harassed her and two weeks later, Leticia was terminated. The employer would then need to establish a legitimate, non-retaliatory reason for the adverse action.
Second, the employee’s “protected activity” is the raising of the complaint itself. That is, the employee need not successfully prove their underlying complaint. In our example, Leticia’s employer could have concluded that she was not sexually harassed but under the law, she cannot be retaliated against for having complained about it. Proving that an employee complained about harassment and discrimination is much easier to establish than proving the employee was harassed or discriminated against.
Third, retaliation is often the result of ill-advised reactions to employee complaints. Employees who rock the boat are often not well-liked, especially if they have raised complaints about their manager or made accusations that the company has engaged in unethical (or even criminal) practices. Moreover, a manager who has been accused of wrongdoing may find it difficult to continue managing the complaining party. A natural inclination may be to avoid the person lest they complain again, but yet this can interfere with the employee’s ability to perform. Worse yet, shunning the whistleblower can amount to retaliatory harassment.
What Steps Can Employers Take?
Written policies are an important and easy step. Include a statement that retaliation is prohibited for raising complaints as part of the discrimination/harassment, workplace violence, ethical conduct, health and safety, and open door policies. Make sure that each of these policies provides as many avenues as possible for employees to raise concerns. For example, employees should be informed that they can complain to their own manager, any other manager, any executive or Human Resources. It is not helpful if employees must report their complaint only to their immediate manager since that person may be the one engaging in the wrongful conduct. Small employers may not have a lot of reporting options and thus should consider their Board of Directors as a reporting option.
If you have a complaint-reporting hotline (whether web-based or otherwise), ensure that there is a prompt acknowledgment of receipt. Additional clarification of an employee’s initial complaint is often needed. If so, clearly state what information the complainant needs to provide, along with a specific deadline for providing it. If the complaint was made anonymously, reiterate the employer’s retaliation prohibitions and ask the complainant to self-identify.
Train managers so that they know what to do if an employee complains to them. Teach them about active listening and documenting the conversation. Ensure that they should never discourage or prevent an employee from complaining to another manager or Human Resources. Managers sometimes like to insist that their direct reports go to them first with everything with the subtext being, don’t go to HR.
Establish clear guidelines so managers understand that they are required to elevate employee complaints. Remember that once a manager is on notice of a complaint, the company is on notice and action must be taken.
Take all employee complaints seriously, even if the employee has raised unsuccessful complaints in the past and even if the employee is about to be terminated. Conduct thorough and unbiased investigations of complaints. Determine if the investigation ought to be conducted by an experienced third-party investigator, for example, if the complaint relates to an executive or a widespread business practice.
Ensure that the complaining employee is treated fairly after the investigation. If a manager was the subject of an employee’s complaint, provide coaching on how the manager ought to communicate with the employee. This may require more hands-on facilitation by Human Resources to help repair the work relationship between the complaining party and the manager. The work group may benefit from team-building after a complaint and investigation, the latter of which tends to be very disruptive and sometimes divisive.
If the complaining party had job performance deficiencies at the time of their complaint, work closely with legal counsel to determine whether and when a legitimate non-retaliatory disciplinary action or termination is appropriate. Clear documentation is crucial.
Set up a formalized procedure for Human Resources and/or Legal to conduct a second-level review and approval of all performance improvement plans, disciplinary actions and terminations. Part of this review would involve identifying whether the under-performing employee had raised any complaints informally or otherwise.
For more information or assistance with employment law compliance matters, please contact Ms. Topliff at topliff@joblaw.com.
