On September 7, 2016 I wrote Guarding against retaliation is a much more active process now! Since then I have read some additional material that certainly indicates that retaliation is a very big deal to the EEOC. The EEOC has even prepared suggested steps that employers should take to insure they do not engage in any retaliation. Lest you are unclear “suggested” in the EEOC playbook means “must do or we will blast you.”
Suggested or “promising” practices
The EEOC published what it called “promising practices” that employers could engage in to show to the EEOC and employees that they take retaliation seriously. These include:
- Employers should maintain a written, plain-language anti-retaliation policy, and provide practical guidance on the employer’s expectations with user-friendly examples of what to do and not to do.
- Employers should consider training all managers, supervisors, and employees on the employer’s written anti-retaliation policy, and sending a message from top management that retaliation will not be tolerated.
- Managers and supervisors alleged to have engaged in discrimination should be provided with guidance on how to handle any personal feelings about the allegations when carrying out management duties or interacting in the workplace.
- Employers may also wish to check in with employees, managers, and witnesses during the pendency of an EEO matter to inquire if there are any concerns regarding potential or perceived retaliation. This may help spot issues before they fester, and to reassure employees and witnesses of the employer’s commitment to protect against retaliation.
- Employers may choose to require decision-makers to identify their reasons for taking consequential actions, and ensure that necessary documentation supports the decision. Employers may examine performance assessments to ensure they have a sound factual basis and are free from unlawful motivations, and emphasize consistency to managers.
A lot of hand-holding
Some of the steps listed above are good, practical steps that all employers should follow. All employers should have a policy but I am not sure what qualifies as a “user-friendly” example. Some of this sounds like we need to have grief counselors on hand to help both employees and supervisors deal with feelings about retaliation.
Regardless of my snarky perception it is important to:
- Have a policy, with examples of prohibited retaliation.
- HR or management should be aware of potential retaliation that might be taken and squelch it before it occurs.
- There should always be a documented business reason for taking action against an employee, either before or after the retaliation.
- The entire process needs to be documented.
As the attorneys at Miller Canfield say “While not all courts will agree with the EEOC’s interpretation of those laws, the EEOC will be the first stop for any employee who is seeking relief under a federal statute and defending an EEOC charge can be costly and time-consuming. …Defending a lawsuit is even worse.”