A staggering 45 percent of the discrimination charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) last year alleged retaliation against an employee for filing a workplace discrimination complaint. The EEOC recently updated its enforcement data to include statistics from fiscal year 2015 (FY2015), highlighting that the agency resolved 92,641 charges and secured more than $525 million for victims of discrimination in private sector and state and local government workplaces through voluntary resolutions and litigation.
For the sixth year in a row, retaliation claims topped the list of all charges over all protected categories, including race, sex, age, national origin, and disability discrimination. In FY2015, the EEOC received 89,385 charges of workplace discrimination. In addition to retaliation, disability charges increased 6 percent to a little over 30 percent of all charges with 26,968 claims filed, and represented the third largest category of charges. On the other hand, race charges, which are the second largest number of charges received, remained relatively constant at roughly 35 percent of all charges filed in FY2015.
The EEOC also noted that harassment allegations made up nearly 28,000 charges or 31 percent. Employees alleged harassment based on race, age, disability, religion, national origin, and sex, including sexual orientation and gender identity.
These statistics really aren’t all that surprising as employees become more knowledgeable about their rights in the workplace, but it reinforces the importance for employers to create and maintain workplaces free of discrimination.
The all-too familiar situation leading up to a potential retaliation claim plays out in businesses every day and is one of the hardest situations for employers to manage.
Consider this scenario: An employee in a protected class has performance issues and the supervisor is trying to work with the employee to correct her performance. The employee feels the supervisor is singling her out for harsh treatment and files a harassment complaint against the supervisor. Company management conducts an internal investigation and finds no evidence of harassment. This information is reported back to both parties with the expectation that they both “get back to work.” By this time, there are hurt feelings (on both sides), the same performance issues remain, and the employee and supervisor are so wary of each other that even the most innocent comment or piece of constructive performance feedback is amplified. The environment is becoming more and more toxic. If the supervisor moves forward with corrective action to manage performance and/or the employee feels that the environment has turned “hostile,” the end result can be a retaliation claim. Sadly, this situation could have been prevented.
Six Things You Can Do
To prevent a similar scenario happening in your company and mitigate your risk of claims, follow these six steps:
- Create an inclusive company culture that is respectful of others, has strong core values, and has zero tolerance for discrimination and harassment. Leadership starts at the top. Create a culture where employees feel that their voices are heard, there is mutual trust, and they know the company does not tolerate discrimination and harassment. When employees see that the leaders of a company are committed to such principles, they are less likely to engage in behaviors that could be viewed as discriminatory or harassing conduct.
- Establish clear goals, objectives, and performance standards, and regularly review performance. When employees know how their work fits in the organization and receive regular feedback relating to those goals, then performance discussions are productive and focused on the job, not the person. The employee “owns” his or her performance.
- Know and understand the applicable antidiscrimination laws affecting your company. Employers should have a good understanding of the various federal, state and, in some cases, local antidiscrimination laws that apply to their company. Many state antidiscrimination laws have a lower employee threshold count for coverage than their federal counterpart and may also have additional protected classes/characteristics.
- Draft and implement a comprehensive antidiscrimination and harassment policy, with company support systems reinforcing that policy. Ensuring that employees know what you expect of them goes beyond the goal-setting outlined in the second step. You should also develop a comprehensive policy explaining what constitutes unlawful discrimination and harassment, how employees can report violations, and how the company will respond to complaints of discrimination. This policy should:
- Unequivocally state that the company is committed to providing a workplace free of discrimination and harassment and that the employer will affirmatively work to achieve this goal.
- List and explain what classes/characteristics are protected under applicable federal, state, and local laws.
- Provide employees with examples of prohibited discrimination and harassment.
- Describe the company’s procedure for handling complaints (including a description of the investigative process).
- Inform employees that complaints will be kept confidential to the extent possible.
- Make clear that retaliation is prohibited.
- Advise employees that violations of the policy may result in disciplinary action, up to and including termination.
- Develop and institute an antidiscrimination and harassment training program. Training all employees, not just supervisors, on this important topic is a key element of your overall program, and you should ensure that the training reinforces your company culture and expectations about employee behavior towards each other. Make the training a regular part of your program to refresh your culture and values system and conduct it at least annually. Note that some states, like California, require employers to conduct harassment training for supervisors every two years. At a minimum this program should include:
- A definition of the terms “discrimination” and “harassment.”
- A list and explanation of the protected classes/characteristics under applicable federal, state, and local laws.
- Examples of prohibited conduct.
- The company’s procedure for handling complaints (including a description of the investigative process).
- A discussion regarding the confidentiality of complaints (complaints will be kept confidential to the extent possible).
- A discussion on prohibited retaliation with examples.
- A discussion regarding repercussions for violating the employer’s policy.
- Some form of testing that shows the employee understood the training.
- A signed acknowledgement form (for recordkeeping purposes) verifying that the employee attended the training.
Managerial and supervisory employees should also receive additional information and training to be able to recognize and prevent situations from escalating and include:
- How to recognize and defuse potential situations
- Process for reporting discrimination and harassment.
- How to avoid claims of retaliation.
- Defenses to harassment claims.
- Employer liability for harassment.
- Address potential issues immediately and completely. Don’t wait for the internal complaint or the notice from the EEOC to reach your desk. Tackle the tough conversations early and resolve them completely. For example, in our hypothetical retaliation situation, company management could have taken additional steps to defuse the issue by helping the employee and supervisor work through the performance concerns immediately after the investigation concluded or moved the employee to another department (without the personal tensions) so she felt “heard” and had a better chance at being successful in her job.
Doing what you can to make sure that your company is not one of the EEOC’s statistics next year and keeping a positive company culture is just good business.