The federal Equal Employment Opportunity Commission is seeing more and more retaliation complaints by U.S. employees, with such charges accounting for 54% of all charges in 2019. That’s compared with 37% in 2011.
Employment law attorneys say that the increase is in part due to the fact that the employees who bring retaliation charges have a higher degree of success than those that bring a regular discrimination charge.
There is a lower standard of harm that must be proven for a successful retaliation lawsuit thanks to the U.S. Supreme Court case, Burlington Northern & Santa Fe Railroad vs. White.
While an employee alleging discrimination must prove that they suffered a “materially adverse employment action,” a retaliation plaintiff only needs show that the employer undertook some conduct that may dissuade them from making or supporting a charge.
Also, juries inherently distrust employers and they wouldn’t put it past one to retaliate, according to an article written by Daniel A. Kaplan of the law firm of Foley &Lardner.
Kaplan sets out three steps employers can take to avoid retaliation complaints:
Set clear and unambiguous policies
- Your company policy should clearly state that retaliation is not permitted.
- The policy should describe the parameters of inappropriate conduct as well as you can define them.
- Put the policy in writing.
- Include a reporting and grievance procedure, including the person or persons to whom the employee can report a retaliation complaint.
- Have employees sign an acknowledgment of receipt of your policy.
Investigate complaints promptly
- Remember that anyone who participates in an investigation is likely protected from retaliation (not just the employee who makes the complaint, but witnesses as well).
- Communicate the results of the investigation to the grievant.
- Take effective remedial measures, including carefully reviewing all disciplinary measures before imposing them. You should also ensure that disciplinary actions are consistent with past practices.
- Make sure all of your managers are trained and understand the policy.
- Ensure they understand who is protected from retaliation (participants, complainants, and even persons related to the complainant in some cases).
- They should also understand what constitutes retaliatory conduct and, if they are unsure, they should speak to your human resources manager.