The EEOC reported this week that retaliation charges outpaced race discrimination charges at the agency during fiscal year 2010. This is the first time that retaliation charges (under all statutes) surpassed race discrimination charges at the EEOC, making retaliation charges the most frequently type of charge filed at the EEOC last year.
The EEOC’s statistics on retaliation confirm what employers and employment lawyers already know – retaliation claims against employers continue to increase in frequency. Retaliation claims pose a unique hazard to employers; an otherwise baseless claim (for example, an unsubstantiated discrimination claim), when not handled appropriately, can morph into a legitimate retaliation claim. What actions can Pennsylvania, New Jersey, and Delaware employers take to prevent a defensible claim from turning into a less than defensible retaliation lawsuit?
My colleague, Katharine Hartman, a labor and employment law attorney who practices with me at Dilworth Paxson LLP, has some suggestions for you after the jump…
Maintain a clear written anti-retaliation policy. Your policy should explicitly prohibit retaliation, and state that anyone violating the policy will be subject to discipline. This policy should also have a procedure for employees to report incidents of retaliation to the employer.
Keep investigations confidential. To the extent possible, investigations into complaints of discrimination should be kept confidential. The fewer people who are aware of a complaint means the fewer people who can be accused of retaliation. This also means that when conducting investigations, it is a good idea to judiciously limit the information you tell interviewees and others who are involved in the investigation. Only tell people what you need to tell them in order to effectively conduct your investigation. Also, the number of individuals charged with carrying out the investigation should be limited (and trustworthy). All involved should be explicitly told not to discuss the investigation with others.
Remind your supervisors of the dangers of retaliation. All managers and supervisors should be trained on retaliation. This training should include a reminder that supervisors may be subject to individual liability for retaliation (for example, in Pennsylvania, supervisors can be held personally liable for aiding and abetting the employer). Training should make clear that employees who make complaints, as well as employees who cooperate in investigations, can potentially raise allegations of retaliation. Additionally, when a supervisor’s report makes a complaint under a statute with an anti-retaliation provision, the supervisor should be individually reminded that retaliation against that complaining employee is prohibited. Supervisors should also be reminded that any action that they contemplate taking against the employee should only be made in consultation with whomever is directing the investigation. It is important that supervisors not overreact to performance issues at this time.
Follow-up with complaining employees. Timing is key to proving retaliation complaints. For example, if an employee is disciplined for performance reasons three days after lodging a complaint of discrimination with Human Resources, that employee might very well claim that the discipline was in retaliation for their discrimination complaint. For this reason, it is good to follow-up and otherwise monitor complaining employees’ working environment for a couple of months after the employee has made their complaint and after the investigation has concluded. One option is ask employees to sign off on their agreement that they have not been subjected to retaliation since making their complaint.
Continue to treat similarly-situated employees the same. The best way to prevent discrimination complaints is to treat similarly-situated employees in a similar fashion. It is also a key component of preventing retaliation claims. Part of proving that you treat like employees the same is documenting the reasons that you take adverse actions against your employees. The same advice follows when you give one an employee a benefit (like a raise) but deny that same benefit to a similarly-situated employee. Take care not to “over-document” an employee who has made a complaint, however.
Implement and follow a neutral reference policy. Did you know that a former employee can claim retaliation? It’s true. Often, this comes up when a fired employee believes that the former employer is sandbagging his/her efforts to find a new job by providing negative references to prospective employers. Employers can nip this and other similar problems in the bud by sticking with a neutral reference policy.