Employers, imagine that a retaliation charge has been filed against your company. What can you do to make the EEOC investigator love you?
Late last week, the Equal Employment Opportunity Commission issued its final Enforcement Guidance on Retaliation and Related Issues, accompanied by a Q&A, and a Small Business Fact Sheet.
I had three fairly detailed blog posts on the EEOC’s proposed guidance at the beginning of this year:
If you didn’t read these older posts when I published them, I recommend that you go back and read them now. The final guidance is very similar, although I admit that I haven’t done a word-for-word comparison.
However, my older blog posts gave fairly short shrift to the EEOC’s recommendations for employers, so that’s what I’d like to talk about now.
SIX WAYS TO MAKE THE EEOC INVESTIGATOR L♥VE YOU (Retaliation Edition)
♥ Have a written no-retaliation policy, in plain language that your least-educated employee can understand. (Also in languages that your employees understand.) Provide realistic examples. Tell employees where and how to report alleged retaliation. In the management version, provide a hotline and other help for managers and supervisors who have to supervise an employee who has engaged in protected activity.
♥♥Go through your other employment policies, and revise or scrap any that seem to threaten employees who engage in certain types of protected activity. For instance, if you have a policy that prohibits employees from talking about their pay, ditch it. The EEOC says a policy like that is retaliatory, and if you’re a federal contractor such a policy will also get you in trouble with the Office of Federal Contract Compliance Programs. Other federal agencies hate those policies, too, including the National Labor Relations Board.
♥♥♥Include retaliation in your regular EEO training for employees and supervisors. Again, employees need to understand that retaliation is against the law, and they need to know where and how to report it. The training should be offered to all employees, not just “office” employees. You can always video record the training for employees in remote locations. Supervisors and managers need to know the ABCs of retaliation, too, and in addition they need to know what to do if they are named in a charge by an employee they supervise. I really did appreciate this suggestion from the EEOC: “Emphasize that those accused of EEO violations . . . should not act on feelings of revenge or retribution, although also acknowledge that those emotions may occur.” (Emphasis added.) I love the way that the EEOC separates actions from emotions.
♥♥♥♥If a current employee files a charge (or engages in other protected activity), talk with the employee’s supervisors and managers as soon as possible, and remind them of the laws and company policy against retaliation. If they directly supervise the employee who filed the charge, come up with a plan that will allow them to keep their personal feelings under control and continue constructively managing that employee. (The EEOC doesn’t mention this, but depending on the circumstances you may decide that the manager or supervisor doesn’t need to know about the charge at all. If a manager doesn’t know, then by definition she cannot retaliate. Ignorance can be bliss.)
♥♥♥♥♥Follow up periodically with everyone involved in a charge (or other protected activity) to ensure that no retaliation is occurring. “Everyone” would include the individual who filed the charge, as well as his direct supervisor and the people in his chain of command. If you have employees who are witnesses in connection with the charge, check in with them, too. Needless to say, if you find out that there is actual or perceived retaliation, you need to address it immediately. Be sure to document all of your efforts. and even (especially?) if you are told that everything is fine.
♥♥♥♥♥♥If action has to be taken against an employee who has filed a charge or engaged in other protected activity, review it carefully in advance, in consultation with your employment attorneys. As I noted in my “adverse action” post linked above, even a seemingly slight downgrade in a performance rating could be considered retaliatory if it results in a smaller pay increase or makes the employee ineligible for promotion.
Good stuff! The EEOC’s retaliation guidance is an easy read, and it seems fair, and consistent with current court decisions. If you’re in a Human Resources or legal role for an employer, you should read it all the way through.
A great way to spend your Labor Day Weekend (kidding), which I hope is a happy one (not kidding)!