You probably already know it’s illegal to retaliate against an employee for engaging in a protected activity (such as reporting or complaining about something unlawful).
But maybe you didn’t know how broadly the idea of “retaliation” can be defined by the U.S. Equal Employment Opportunity Commission, or how many forms retaliation can take and still be legally punishable.
Employee retaliation claims are by far the most common claims the EEOC receives, making up about 45% of all claims filed. So if you’re being accused of retaliation, you’re certainly not alone.
Many questions swirl around retaliation. can retaliation be committed by non-managers? Understanding a little more about how retaliation is defined can help you create a strategy for how to respond to retaliation claims and minimize the chances of getting accused of retaliation in the future.
As the EEOC states, “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.”
Protected activities aren’t limited to discrimination, though. There are lots of laws and acts that specifically bar retaliation, as we mentioned in our previous post on a retaliation prevention strategy. Here they are:
- Age Discrimination in Employment Act (ADEA)
- Americans with Disabilities Act (ADA)
- Civil Rights Act of 1871
- Civil Rights Act of 1964 (Title VII)
- Civil War Reconstruction Era Federal Civil Rights Statutes
- Clean Air Act
- Department of Energy Defense Activities Whistleblower Protection
- Employee Polygraph Protection Act
- Employee Retirement Income Security Act (ERISA)
- Equal Pay Act
- Fair Labor Standards Act (wage and hour, child labor, minimum wage, overtime)
- False Claims Act
- Family and Medical Leave Act (FMLA)
- Labor Management Relations Act
- National Labor Relations Act
- Occupational Safety and Health Act
- Rehabilitation Act
- Safe Drinking Water Act
- Sarbanes Oxley Act
- Toxic Substances Control Act
- Whistleblower Protection Act (federal government employees)
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In 2016, the EEOC defined retaliation even more broadly to include a lot more behaviors that don’t specifically violate a legal statute. Those behaviors include what we refer to as “pre-retaliation,” or trying to keep employees from raising issues or pursuing reasonable accommodations in the first place. Retaliation may also may include actions that aren’t even work-related.
These expansions were put in place to address the fact that even subtle behavior on the part of an employer or manager can be effective at deterring people from executing on their protected activities.
It’s also worth noting that not all retaliation is done by managers. This NPR article quotes experts that “between 50 percent and 70 percent of retaliation cases are perpetrated by managers, but retaliation can also include bullying as a form of retribution.”
Here are a few other examples of retaliation listed on the EEOC web site:
- reprimand the employee or give a performance evaluation that is lower than it should be
- transfer the employee to a less desirable position
- engage in verbal or physical abuse
- threaten to make, or actually make reports to authorities (such as reporting immigration status or contacting the police)
- increase scrutiny
- spread false rumors, treat a family member negatively (for example, cancel a contract with the person’s spouse)
- make the person’s work more difficult (for example, punishing an employee for an EEO complaint by purposefully changing his work schedule to conflict with family responsibilities)
Responding to a Retaliation Claim
If your employee has already filed a claim with the EEOC or with the state, you should get in touch with your business lawyer right away. He or she can advise you on how to proceed, keeping the following basics in mind:
Retaliation Doesn’t Require Ill-Will
Even if your managers exhibit what seems like perfect behavior to you, retaliation can still be perceived by an employee. And even if your managers think they weren’t retaliating, they may have been doing it inadvertently.
That’s because well-meaning behavior can still qualify as retaliation. For example, a manager may respond to a complaint of harassment by relocating the complaining employee or changing their shift to get them away from the offenders. They may think they’re helping the employee, but it’s not a help if the location or shift change is inconvenient or detrimental to them.
Complaints Should be Taken Seriously
Most managers that have consciously retaliated against an employee will try to pin their behavior on a non-related work behavioral or performance issue. If the manager’s knee-jerk response is self-righteousness, offense, or to blow the complaint off, that’s a sign of a bad culture at your organization — or a bad cultural fit from that manager.
Even if the retaliation claim is frivolous, it’s a serious issue that is likely to cost your company lots in legal fees and lost productivity. It should be treated with the seriousness it deserves.
Relationships Will Require Repair
Legal experts may advise against making apologies or admitting to any wrongdoing. However, that doesn’t mean that the offending manager can’t have a conversation with the employee (supervised by HR) in which they hear the employee out or explain their intentions.
Depending on the claim, it may help to acknowledge the employee’s feelings and behavior or explain why the manager acted in a way that was perceived as retaliation. Consult your lawyer about whether this is type of conversation is ideal in your specific scenario.
The key is to give both parties the tools they need to move forward with a working relationship that makes them feel comfortable.
Preventing Future Claims
To prevent retaliation claims, the EEOC recommends implementing written anti-retaliation policies, holding employee training on the subject, and emphasizing the importance of respect in the workplace.
Policies, procedures and training are all essential tools. However, they only work if they’re focused more on creating lasting cultural change than avoiding lawsuits.
If your organization’s leaders are ready to demonstrate that they’re serious about preventing retaliatory behavior, they can start with a few basics:
- Send a clear, simple message that they WELCOME the reporting of any problems
- Remind all employees of this message regularly and informally
As we wrote back in 2010, a good message might be something like this:
“We want to find out about any issues that can harm our business, the public, or our employees. We need your help to fix problems, sooner rather than later. So here’s what we need from all of you, and here’s our promise: Bring us issues, no matter what they are, as long as you have reason to believe there’s a real problem we need to address. We will appreciate and look into your issues, and we won’t retaliate against people who do this. We have multiple places for you to let us know about problems, but what’s most important is that you know we are serious about this commitment. From time to time, we’ll provide you some additional information and training on a range of different topics, some of which relate to the law. But the key is we want to prevent, find out about, and fix problems. And we have to have your help. So please help us, our public, and your co-workers.”
At ELI, we leverage our deep legal expertise to teach organizations how to build the kind of civil workplaces that prevent problems like retaliation. We invite you to request a quote today, and we look forward to hearing from you.