By: Nikki Thomsen, SHRM-SCP, SPHR (she/her), HR Consultant, Insight HRM
Retaliation is Still Number 1 on the EEOC’s List of Charges
The Equal Employment Opportunity Commission (EEOC) continues to report that Retaliation is still the number one charge, since roughly 2009, where it tied with Racial Discrimination, with last year’s total reaching 34,332 charges, lets take a look at potential scenarios that may prompt such claims.
A couple of employees who are conversing either in person, or on social media about what a jerk their boss is, and/or the terrible pay they receive while working for your company.
A supervisor come to you about letting go of one of their employees due to not fitting into the team, however the employee the supervisor is mentioning was just in your office last week talking about how the supervisor made them feel uncomfortable as they were constantly making inappropriate remarks on their appearance.
A new employee has requested a special chair and desk in order to fulfil the essential functions of their job. The employee has provided you with an accommodation request and sufficient information from a medical professional to warrant the need for these items.
You have heard around the shop that you have an employee who you have heard may have called OSHA due to what they claim are safety concerns regarding violation of masking, social distancing, and PPE requirements in your company.
What is retaliation?
Retaliation is when you “punish” an employee for asserting their rights. These rights can take many forms, below is a list taken directly from the EEOC’s website:
- filing or being a witness in an EEO charge, complaint, investigation, or lawsuit
- communicating with a supervisor or manager about employment discrimination, including harassment
- answering questions during an employer investigation of alleged harassment
- refusing to follow orders that would result in discrimination
- resisting sexual advances, or intervening to protect others
- requesting accommodation of a disability or for a religious practice
- asking managers or co-workers about salary information to uncover potentially discriminatory wages.
How can employers work to avoid retaliation claims?
Let’s work through the list of scenarios and find out how each one is a possible retaliation claim waiting to happen.
In Scenario 1 an employer may be tempted to possibly fire an employee for the comments made against the supervisor or company. But did you know that even if your facility is not a union facility you could be violating the National Labor Relations Act (NLRA), and depending on the action taken you could be retaliating against the workers based on protected concerted activity? It is important to remember that in the social media example an employee can complain and another employee can just “react” or “like” the first employees post for this example to become protected concerted activity. Therefor to avoid this type of claim(s) an employer will want to tread lightly when facing this type of situation as they may be facing two federal agencies with charges, first the EEOC, and then the NLRB (National Labor Relations Board.)
The example given in Scenario 2 could also bring about several charges if not handled properly. In this instance, the employer should have conducted a prompt and through investigation as soon as they had received the allegations from the employee regarding the manager, and therefore mitigated their risk for potential legal action.
Scenario 3 gives us an example of how an employer may again face retaliation charges, but may also violation of the Americans with Disabilities Act if they do not handle the situation appropriately. Remember that an employee must be able to perform the essential functions of their job, with or without reasonable accommodations, and the only time an employer can deny a reasonable accommodation is if it creates an undue hardship.
Scenario 4 should give everyone a pause, and cause the business to truly look at safety practices, not only because of potential fines, but because of the need to protect our most valuable asset – our human capital. To ensure that your company does not face OSHA, or the EEOC make sure that safety practices are being followed, even if it means you have to be the “mask police” or the “hard hat police.” In this example the best way to keep yourself, and your company out of hot water is to discipline those who are not following safety guidelines.
In closing, it is important to remember that any employee is able to file a charge of retaliation, however your job as a HR Leader or Business Owner is to ensure that your practices, policies, and procedures align and show that retaliation is not practiced or tolerated within your organization.
Insight HRM partners with businesses of all sizes to help them plan strategically, bridge the gaps between their current situation and future growth, and provide invaluable guidance to meet the challenges of today’s dynamic HR environment. Insight HRM’s professionals are dedicated to helping businesses navigate the complex world of employment regulations while leveraging your most valuable resource: workforce talent. In addition to providing HR consulting services, Insight HRM also offers Virtual Administrative Support.