The EEOC just made avoiding retaliation claims easier, helping out both you and your managers. The agency recently posted its finalized Enforcement Guidance on Retaliation and Related Issues, that were last updated in 1998.
Why now? According to EEOC Chair Jenny Yang, retaliation claims make up 44.5% of all complaints filed with the EEOC, surpassing racial discrimination in 2009.
The updated guidelines don’t lay out any groundbreaking new rules, but they do underscore a few tricky mistakes managers might make when handling the fallout of an EEOC claim.
To keep your company out of any legal mess, remind your managers that there are some things they definitely shouldn’t do after a complaint has been made:
The employee doesn’t have to work for you to be protected against retaliation. Refusing to hire someone with a previous EEOC complaint against another employer could land you in hot water. The EEOC also views writing negative references as punishment against employees who filed complaints as retaliatory.
Employees who aren’t directly involved in the claim are still protected by the EEOC. Meaning those who are defending others or related to the claimant can’t be mistreated either. For example, a manager can’t revoke a contract he has with an employee’s wife when her husband files a discrimination claim. If that happens, not only does the husband have a right to claim retaliation, so does his wife even if she doesn’t work for you.
Obvious retaliation would be inflicting a wage reduction or reducing responsibilities of that employee. However, the U.S. Supreme Court has ruled that the following could be viewed as adverse actions in retaliation claims:
- transferring a worker to a harder, dirtier job within the same pay grade
- suspension without pay for more than a month
- refusing to investigate death threats against an employee
- filing of false criminal charges against a former employee
- changing the work schedule of a parent who has caretaking responsibilities for school-age children, and
- excluding an employee from a weekly training lunch that contributes to professional advancement.
The NLRB isn’t the only agency that protects employees’ rights to speak openly about compensation. Under EEOC-enforced laws, when an employee asks about compensation or talks about wages, that may be protected by the EEOC. That means, any adverse action taken against an employee talking about wages or other work conditions may amount to retaliation.
Get your managers to document performance. The EEOC says you may fire someone for misconduct or other performance issues, even after they file a complaint. But there has to be another motivation for terminating the employee that isn’t the complaint itself. Careful documentation can mean the difference between staying out of court or facing down a jury.