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EEOC Updates Guidelines on Retaliation

In August 2016, the EEOC issued updated guidance on workplace retaliation, which replaced the previous guidance issued in 1998. During a recent Civil Treatment series webcast, Steve Paskoff, President and CEO of ELI sat down with Paula Garlen, Director of Implementation and Delivery at ELI to discuss the new guidelines and their impact in the workplace. If you missed the live webcast, here are the highlights.

Why is the EEOC updating the guidelines now?

Retaliation complaints have increased substantially and are now the most frequent basis of complaints the EEOC receives. In an effort to address the dramatic increase, it has become more important to include other types of behavior, not just illegal behaviors, in the guidelines. “Many behaviors that may not be so patent and obvious to violate a statute could deter people from coming forward, and I believe that what’s the EEOC has designed its provisions to address.” said Paskoff.

What are some of the biggest changes?

The new guidance is expanding what is considered retaliation under the ADA. The update gears it toward issues where an employer is either trying to convince an employee not to pursue some reasonable accommodation or is not allowing the employee the opportunity to execute that accommodation. Paskoff refers to this as pre-retaliation: engaging in such a way that you are preventing someone from raising an issue. He commented that even subtle behavior might deter people very effectively, so formally addressing this is a much-needed addition to the guidelines.
Touching on ELI’s concept of building an open culture, the guidelines address the role people play in an investigation. Employees can now make broad or ambiguous complaints of unfair treatment because they may not know anti-discrimination laws and this type of communication will be protected opposition. “At ELI, we purposely design Civil Treatment so that the person coming in with the complaint is talking about the substance and not necessarily addressing it in terms of specific illegal actions, provisions, and terms,” added Paskoff.
The new guidance also adds that all materially adverse actions do not necessarily need to be work related and could include taking, or threatening to take, a materially adverse action against a close family member. It’s powerful for an employer to say not only you will be negatively affected, but also a member of your family, so it makes sense for that to be the EEOC’s position.

Prevention recommendations

The EEOC offers a combination of prevention suggestions, which include a blended effort of the letter of the law and the spirit of what is best for both employees and companies.
Managers, supervisors, and employees should be trained on a regular basis. Policies should be expressly communicated and reaffirmed from time to time. These are all ways that address prevention from a compliance perspective. The Commission also recommends some ways, however, to reach the spirit, which is really the best way to prevent illegality from occurring in the first place.
They note that social scientists have found that focusing on respect can help prevent retaliation. Paskoff commented that ELI built the concept of welcoming concerns into their Civil Treatment program for that very reason, and because they think it’s important to find out about business problems and hazards, as well as good ideas. The Commission also recommended developing a pattern of behavior in the way you welcome, listen and respond to issues as a way to encourage people to feel comfortable coming forward.
In ELI’s Civil Treatment program the Welcome Model addresses what leaders need to do when, and even before, someone comes in with a concern, and the best way for employees to engage in a conversation that accurately, properly, and directly raises issues. This involves a combination of communications. If the goal is to unearth problems, you need to have the proper employee communications and proper leadership responses in order to do that. “It’s positive for us to see that those are the steps that the Commission is recommending because they’ve been built into our model based on years of experience working with this issue of how you welcome concerns,” said Paskoff.

The importance of senior leadership

Paskoff wrapped up the webcast by commenting on the critical importance of senior leadership commitment. The way in which you treat people, to prevent harassment and encourage people to come forward must become a cultural practice rather than something done cosmetically. These messages should be embedded in the way you do everything in your business because we recognize that it helps us build a better, stronger, and more effective organization.
The biggest take-away from the webcast could be summarized in one sentence: See something…say something…listen…act. It’s a two-sided solution. If you want to prevent retaliation, people need to speak up, but leaders need to listen, act and do so in a way that helps build trust and encourage people to come forward.
If you missed the live webcast you can access a recorded summary with Steve Paskoff and Paula Garlen. 

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