In an August 29, 2016 press release the EEOC announced it final enforcement guidance on how retaliation is to be handles. As they announced retaliation is the most frequent claim of discrimination and exceeds 45% of claims of discrimination. As one of the three documents produced states “Federal equal employment opportunity (EEO) laws prohibit employers, employment agencies, or unions from punishing job applicants or employees for asserting their rights to be free from employment discrimination, including harassment.” These have been redefined as “protected rights.”
Small business guidance
Because I deal with primarily small businesses I paid attention to the small business document. This guidance says that not only all current employees are protected from retaliation but also all applicants and former employees. The list of potential retaliation includes:
- Taking part in an internal or external investigation of employment discrimination, including harassment;
- Filing or being a witness in a charge, complaint, or lawsuit alleging discrimination;
- Communicating with a supervisor or manager about employment discrimination, including harassment;
- Answering questions during an employer investigation of alleged harassment;
- Refusing to follow orders that would result in discrimination;
- Resisting sexual advances, or intervening to protect others;
- Reporting an instance of harassment to a supervisor;
- Requesting accommodation of a disability or for a religious practice; or
- Asking managers or co-workers about salary information to uncover potentially discriminatory wages.
- Participating in a complaint process is protected from retaliation under all circumstances.
Unofficial acts count too
Even if an employer never takes any official actions there are a number of acts that could be considered retaliation. These include:
- Reprimanding an employee or giving a performance evaluation that is lower than it should be;
- Transferring the employee to a less desirable position;
- Engaging in verbal or physical abuse;
- Threatening to make, or actually making reports to authorities (such as reporting immigration status or contacting the police);
- Increasing scrutiny;
- Spreading false rumors, treating a family member negatively (for example, cancel a contract with the person’s spouse); or
- Taking action that makes 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).
This is not an all-inclusive list and employers must be guarded on all activities surrounding potential retaliation.
Actions to be taken
Attorney Stefan Black of Ford Harrison, recommends that employer do the following:
- Revise policies to emphasize that retaliation is strictly prohibited and may result in the termination of the individual(s) doing the retaliation;
- Train everyone on a regular basis on what retaliation is;
- Let any employee accused of any form of discrimination that retaliation is strictly forbidden and even relocate the accused to take away the possibility of retaliation;
- Proactively check in with every employee who has made an accusation that they have the responsibility to report retaliation.
To some managers this may seem as excessive, but it is the law and it is what is being required. So ignore this at your own peril.
The main document can be read here.
The small business guidance can be read here.
The Q & A can be read here.