Retaliation is the most common type of claim filed with the Equal Employment Opportunity Commission (EEOC). For perspective, in fiscal year 2022, the agency received 73,485 new discrimination charges, which represents an increase of almost 20% when compared to the previous fiscal year. The agency also handled more than 475,000 calls —an 18% increase from Fiscal year 2021—and managed 32% more emails from the public than the previous year. Without clarity from managers and leaders in the workplace, these numbers are bound to increase this year.
Should employees come forward with a discrimination claim, retaliating against the employee can land employers in court, regardless of the initial claim finding. While the waters around this issue are choppy, there are ways you can structure your management and HR policies to calm the seas ahead and protect your business.
Communicating this challenge comes down to three main steps: defining what constitutes retaliation, pinpointing how you can recognize it, and creating a plan to prevent workplace retaliation.
What Is Retaliation?
What better place to start than with the EEOC, the organization charged with enforcing federal laws prohibiting employment discrimination. Retaliation constitutes the following:
A manager may not fire, demote, harass, or otherwise “retaliate” against an individual for filing a complaint of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, disability, and genetic information also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding.
The US Department of Labor provides an even more concise definition:
Retaliation occurs when an employer (through a manager, supervisor, administrator or directly) fires an employee or takes any other type of adverse action against an employee for engaging in protected activity.
In short, you cannot discriminate against or show favoritism to specific employees. The EEOC also states it is unlawful to retaliate against an employee who witnessed or one who may have testified in an ongoing investigation at your company.
As a manager and leader in your business, understanding this term (and its implications) is imperative can guard against legal repercussions in your company.
How to Recognize Workplace Retaliation
Here are a few warning signs you should be aware of.
Antagonistic interactions– a hostile work environment is usually made up of spiteful comments that can tear people down or conversations where managers disparage employees. Any form of verbal abuse can be just cause for employee retaliation.
Unfair/one-sided performance reviews – If, for example, a manager marked an employee’s review as poor in several areas, when everyone else in the company raves about the same employee, something may be amiss.
Undocumented demotion in salary or responsibilities – Unless tangible reasons exist (like an employee is going from full-time to part-time or they are relinquishing certain responsibilities) this should not be part of an employee experience. Any changes in an employee’s role or compensation should be clearly documented with multiple people on a leadership team viewing the rationale for and approval of any change.
Unprompted termination – this is the most common example. There are clear and tangible reasons for releasing an employee from employment outlined in Employee Handbooks, however, if the termination does not align with your company policy, there may be grounds for retaliation.
This begs the ever important (and fitting) question: How can you prevent retaliation? Here are a few key points to remember.
How to Prevent Retaliation
Clearly and unequivocally understand your role as a manager. You are to be proactive in supporting your team in every possible way. Your conduct sets the tone for your team and must be beyond reproach to protect your company.
The timing to understand this is more important than ever, especially with a potential recession in our economy. For example, during the 2008 financial crisis, the number of charges of discrimination filed with the US Equal Employment Opportunity Commission increased by 15%. An all-time high was reached in the fiscal year 2011. While the current conditions are less stark, the possibility remains for similar impact, especially if there is a lack of clarity from managers.
Create clear policies for your company and provide consistent training. These can include “How to Prevent Retaliation” trainings and others including Communication principles. In fact, OSHA makes the following clear: “Employer policies must not discourage employees from reporting concerns to a government agency, delay employee reports to government, or require employees to report concerns to the employer first.”
Be open and positive about employees’ rights. Discuss your company culture and how to improve the working environment. Encourage employees to share their observations, concerns and be open to their feedback. What do they appreciate and what would they like to see more of?
Examine every internal claim. Each scenario provides an opportunity to learn. Whether the retaliation complaints are found to be accurate or not, you can grow from each circumstance. Adding a third-party organization in these scenarios can be a lifesaver. Experts in HR matters can provide unbiased opinions to properly navigate and respond to each scenario. Document every detail increases confidence and you will find options to appropriately update your policies for the future.
Supervisors and managers must be trained to consistently apply your company’s employment policies across your workforce. They also must understand the process for handling complaints. Consistency is key – failing to implement policies may lead to perceptions of unfairness, favoritism, or retaliation. The more you invest in your team, the better any potential scenario will be addressed.
Looking for assistance in legal matters of retaliation or compliance? Ethan Allen is here to provide dedicated support. Let our HR experts become your HR experts.