Your anti-discrimination, -harassment, and -retaliation policies must be enforced to be effective. It’s likely that this is no news flash, but in practice, people tend to forget.
Case in point: yet another public memo to a household name company demonstrating that all that glitters may not be gold.
What am I talking about? Well, this past weekend, I read this article by a new mama at Google who penned a memo recounting her experience when she, pregnant herself, stood up for a pregnant employee on her team.
The employee in question recounted the multiple inappropriate comments made by her manager demeaning pregnancy and the ability of pregnant employees to manage a team. The author reported that her manager complained: “the Googler was likely pregnant again and was overly emotional and hard to work with when pregnant.”
After the author complained to HR, she explains that her director became openly hostile, and sent her angry emails and chats, regularly vetoed her ideas, and even publicly shamed her.
HR’s response? According to the memo, HR admitted that it knew there were some issues with this director, acknowledged that such comments were inappropriate, but said that there was no evidence of retaliation and so an investigation was unwarranted.
Yeah, that’s a confusing one. HR, how can you obtain any evidence without an investigation? That’s the point of an investigation!
The author transferred to another team, but found no relief. She alleges that, among other things, her new manager told her she couldn’t absorb her new team (as a manager) until she returned from maternity leave (she was 4.5 months pregnant at the time) because of concerns that her pregnancy would “stress the team” and “rock the boat,” couldn’t manage the team, and excluded her from management activities and communications.
There are additional allegations, and as naturally occurred, this memo soon went viral. You can read the entire memo here.
Let’s break this down.
First, and in general, pregnancy discrimination is a type of sex discrimination. In fact, the Pregnancy Discrimination Act (PDA) is an amendment to Title VII of the Civil Rights Act of 1964 (Title VII). The Equal Employment Opportunity Commission (EEOC) explains:
Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII. Women affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees who are similar in their ability or inability to work.
Next, once an employee complains to the Human Resources Department (or a supervisor) about sex discrimination, if the employer then demotes or terminates the employee or takes any adverse action, the employer can be held liable for retaliating against the employee for complaining about discrimination.
Informing management about unlawful workplace discrimination is “protected activity” under Title VII, which includes an anti-retaliation provision prohibiting management from subjecting an employee to an “adverse action” (like excluding said employee from activities and communications) when that employee has opposed any practice made an unlawful employment practice by Title VII. It’s even called the Opposition Clause!
The EEOC considers “opposition” to be complaining to anyone about alleged discrimination to oneself OR others.
So, once an employee complains to you, HR, about discrimination, if the employer takes any adverse action against the employee, the employer can be held liable for retaliating against the employee.
How does that work?
To make out a claim for retaliation, an employee need only demonstrate that (1) she was engaged in a “statutorily protected activity” by opposing an employment practice which she has a good faith, reasonable basis to believe is unlawful; (2) an “adverse employment action” was taken by the employer; and (3) there is some causal connection between the two, i.e., an adverse action following a statutorily protected activity.
As we have oft noted, the best-drafted, airtight, protective anti-discrimination and anti-retaliation policies in your workplace are no good at all if you do not follow your procedures and enforce them.
HR Is a Company’s First Line of defense. But Not If It Fails To Take Action.
What Should Employers Do?
From a high level, and as I wrote in here and here, employers seeking to prevent discrimination, harassment, or retaliation should:
- Provide a written procedure for reporting and thoroughly investigating claims of unlawful harassment and follow the procedure, extensively documenting the process along the way.
- Take all complaints seriously regardless of whether a complaint is made formally or informally.
- Start the investigation ASAP. As soon as practicable (no need to panic), an investigation should be performed thoroughly and in an unbiased manner.
- Ensure the comfort of the complaining employee. You may have to remove the potential offender
- DOCUMENT this process along the way. I cannot begin to stress this enough.
- If you are investigating misconduct, continue to follow up with the individual who reported the harassment—whether you found that it occurred or not—to ensure they feel safe and that they are not being retaliated against; again, document all findings.
- Take swift and decisive corrective action to prevent such conduct. That may mean suspending or terminating the perpetrator. Once your company is aware that sexual harassment likely occurred, you are complicit if you fail to take investigate and/or take corrective action. Have clear standards for what type of conduct merits discipline and the types of discipline and enforce it—hold people accountable for misconduct.
- Provide regular, interactive, professional training to employees and managers tailored to your workplace so that they can recognize, respond to, and prevent unlawful harassment (based on sex, race, age, etc.) A “one size fits all” approach to training is generally ineffective. Further, training must be promoted by senior leaders to show commitment.
- Encourage reporting of any unlawful harassment by men and women—a “say something if you see something” mentality; convey, via your policies and practices, that your company prohibits retaliation.
- Critically, maintain a “top-down” culture prohibiting unlawful harassment. When anti-discrimination and a refusal to tolerate harassment comes from the very top of your organization, it demonstrates commitment to employees from the C-Suite to the mailroom to maintain a culture of respect for all. It says, “we’re serious here” and, likely, a workplace with an organizational culture that results in less discrimination and harassment.
A point about #9 and pertinent to the allegations in the mama’s memo: it’s pointless to encourage reporting and pay all of that money to employment counsel for a gold standard anti-retaliation policy if managers retaliate against employees that oppose harassment and HR fails to investigation or take action.