The Equal Employment Opportunity Commission’s ("EEOC") top “hot button” is retaliation. The EEOC reported that retaliation was the number one complaint of private sector workers in 2015 and accounted for 45% of all charges received by the EEOC — ahead of race, disability, harassment and equal pay claims. In fact, the EEOC is so concerned that it has drafted enforcement guidance on retaliation and related issues to update its current material.
Retaliation occurs when an employer (acting through a manager, supervisor or policy) “punishes” or penalizes an employee for having exercised a protected right, such as making a complaint or filing a charge or lawsuit. The alleged “punishment” can include obvious employer actions, such as discipline, termination or a pay cut. However, it can also encompass less obvious actions, such as treating an employee differently than before he or she exercised the right. An employee may claim retaliation after a charge or complaint even if the employer’s action had nothing to do with the employee’s exercise of that right. Any adverse action after a complaint could be fair game.
Often, managers and supervisors do not intend to retaliate. Instead, they are afraid of interaction with the employee after a complaint and fail to handle the situation appropriately. There are “safe” ways to get everyone working together again after a charge or complaint, but managers and supervisors have to be educated — before it happens — on what to do and where to get help. The company has an important role to play in these instances by setting the participants up for success after an incident. Before-the-fact management training can help companies avoid hard-to-defend retaliation claims.