The topic of retaliation in the workplace, in response to employee reports of discrimination, is one employers should be watching. Though retaliation is a complicated topic, it’s important for employers to be aware of because of the potential litigation involved.
“Retaliation occurs when an employer unlawfully takes action against an individual in punishment for exercising rights protected by any of the equal employment opportunity laws,” according to the Equal Employment Opportunity Commission. “The anti-retaliation provisions apply to ensure individuals are free to raise complaints of potential violations or engage in other equal employment opportunity activity without retribution or punishment.”
The Equal Employment Opportunity Commission in January released proposed enforcement guidance on retaliation claims and how they relate to charges of discrimination, writes Catherine Moreton Gray for HR.BLR.com. “The guidance sets out the standards for proving retaliation under the various civil rights laws,” Gray writes. “To establish a claim of retaliation, the employee must show he or she engaged in protected activity through participation in EEO activity or by opposing discrimination; the employer took adverse action against the employee; and there is a causal connection between the protected activity and the adverse action.”
Individuals must be able to speak up about discrimination without fear of punishment, the draft guidance states. Gray believes the EEOC’s guidance will help employers understand related laws, and avoid violating them. “The EEOC suggests that employers should establish and maintain a written, plain-language anti-retaliation policy,” Gray writes.
It should help all employees and supervisors understand what actions could be considered as retaliatory, and publicize clear channels for employees to weigh in with their concerns about the topic. The EEOC also suggests training the entire company on the anti-retaliation policy and above all, encourage workplace civility.
And while the EEOC is in the process of guiding employers on the laws, “federal courts in some parts of the country have recognized a so-called ‘manager rule’ under Title VII of the 1964 Civil Rights Act,” writes Patrick Dorrian for Bloomberg BNA. “Under the rule, employees who are tasked as part of their job description with receiving and reporting job bias complaints don’t engage in protected activity for purposes of Title VII’s anti-retaliation protections merely by taking such complaints or relaying them to upper management.”
That’s because such managers are tasked with appropriately disciplining employees throughout the course of employees’ everyday jobs. The U.S. Supreme Court has yet to weigh in on the manager rule, but “anything that increases the range of employees who can bring retaliation claims under Title VII and similar laws has real potential to open up the litigation floodgates,” Dorrian writes.
Carol Patton, writing for Human Resource Executive Online, writes that the manager rule should remind employers to investigate all discrimination claims. “However, if disciplinary action is warranted, use progressive discipline, document HR’s efforts and don’t assume any employee is not protected because of their employment status.”