Over the past 10 years, the Equal Employment Opportunity Commission (EEOC) has reported a significant increase in retaliation claims from the private sector, making it the most common type of discrimination claim filed.
Job applicants and employees who assert their rights to be free from employment discrimination and harassment are engaging in a “protected activity”. Punishing them for engaging in this protected activity is considered retaliation and is prohibited by law. For example, it is unlawful to retaliate against applicants or employees for:
- Communicating with a supervisor about employment discrimination and harassment
- Refusing to follow orders the employee believed to be discriminatory
- Resisting sexual advances, or intervening to protect others
- Requesting a religious or disability accommodation
- Discussing salary information with coworkers
- Filing or being a witness in an EEO charge, complaint, investigation, or lawsuit
- Answering questions during an investigation of alleged harassment
- Talking to coworkers to gather information or evidence in support of a potential EEO claim
Retaliation can take many forms, including:
- Negative or lowered performance evaluations
- Demoting the employee
- Engaging in verbal or physical abuse
- Making the employee’s work more difficult, such as changing the employee’s work schedule so as to conflict with her family responsibilities
- Scrutinizing the employee’s work or attendance more closely than that of other employees without any justification for doing so
The EEOC recommends that employers take the following steps to minimize the likelihood of retaliation violations:
- Maintain a written anti-retaliation policy with user-friendly examples of what to do and not to do.
- Train all managers, supervisors and employees, sending a message that retaliation will not be tolerated.
- Provide guidance to managers and supervisors alleged to have engaged in discrimination on how to handle their personal feelings about the allegations while continuing to manage employees.
- Check in with employees, managers, and witnesses during an investigation to see if there are any concerns regarding retaliation. Reassure employees and witnesses that the employer is committed to protecting against retaliation.
- Examine performance assessments to ensure they are based on fact and are free from unlawful motivations. Ensure that there is documentation to support employment decisions.