Toll Free: 877.880.

4477
Phone: 281.880.6525

Perceived Retaliation Can Put Your

Company in Hot Water

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If an employee lodges what you consider an unwarranted complaint about a

supervisor at your company possibly about you yourself it's natural to
feel some resentment. But matters can quickly go from bad to worse if, after
filing the grievance, that employee believes he or she is being retaliated
against.

Employees who seem overly sensitive to the possibility of discrimination may

also interpret ordinary actions as retaliation. Even if you successfully beat back
a charge of retaliation, the process is time-consuming and troubling.

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The fact is, nearly half of complaints taken to the Equal Employment
Opportunity Commission (EEOC) involve a claim of retaliation. And in recent
years the plaintiffs have prevailed in about half of those instances.
Not only that, but in most of those cases where the EEOC agreed with the
plaintiffs that illegal retaliation had occurred, the EEOC had previously
rejected the same employee's claim of discrimination.
In other words, an employee may have a greater chance of success when filing
a claim of retaliation than a claim of discrimination. That's why it's imperative
that your supervisors understand how important it is to avoid any action that
might be interpreted as retaliation for a discrimination claim, actions such as a
reassignment to unpleasant duties, an undesirable work shift, or a demotion.

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Protected Activity
The EEOC defines protected activity as the actions employees can take without
suffering adverse employment consequences.

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The largest category of these actions is when an employee opposes a practice

believed to be unlawful discrimination. The EEOC gives examples:

Complaining to anyone (including fellow employees) about alleged

discrimination against oneself or others,

Threatening to file a discrimination charge, and

Refusing to obey an order reasonably believed to be discriminatory.

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However, actions by employees that are unlawful or that interfere with job
performance "such as acts or threats of violence" are not protected activity.
Two other categories of protected activity are:

Participation in an employment discrimination proceeding, including

serving as a witness or otherwise cooperating in an EEO investigation or
litigation, and

Requesting a reasonable accommodation based on religion or disability.

Retaliation or adverse actions range from the obvious to the more subtle.
Firing, refusing to promote or hiring someone because he or she engaged in
protected activity conducted at a previous workplace both fall under the
"obvious" heading.

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Murky Waters
Things can get a little murkier, says the EEOC on its website: "Other actions
affecting employment such as threats, unjustified negative evaluations,
unjustified negative references, increased surveillance, and any other action
such as an assault or unfounded civil or criminal charges that are likely to
deter reasonable people from pursuing their rights.

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The EEOC offers some examples of retaliation claims that were successful, in
its article entitled, "Retaliation Making it Personal:"
1. An employee sought a promotion following several unsuccessful EEO
complaints. The employee's supervisor had inserted reports about those
complaints into the employee's personnel file. When the person who was
responsible for determining the employee's suitability for promotion
asked for references from her current supervisor, that supervisor told him
about the EEO complaints and furnished copies of the reports.

Presumably the employee didn't get the promotion, because the EEOC
was asked to rule on whether the handing over of those files constituted
illegal retaliation. It did because, among other reasons, "the EEO
information placed in the employee's personnel file was unnecessary and
hindered her promotion opportunities."

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2. An employee who had filed a complaint with the EEOC subsequently was
denied the opportunity to use a company car. Although the supervisor had
discretionary authority to grant that privilege, the EEOC concluded the
denial was at least in part retaliatory in nature. The fact that the denial
came right on the heels of the EEO complaint apparently strengthened the
employee's case. However, the EEOC noted that "there have been cases in
which years have passed and other evidence established that the
employee's earlier EEO activities motivated the manager's action."
Evidence in such cases can include "verbal or written statements,
comparative evidence that a similarly situated employee was treated
differently, falsity of the employer's proffered reason for the adverse
action, or any other evidence from which an inference of retaliatory intent
might be drawn."

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3. Criticizing an employee who had

filed an EEO complaint, thereby
creating "an overall feeling of
distrust and concern about the
employee." In this case, the
supervisor "described the
employee's discrimination
allegations as 'unprofessional,'
'highly offensive' and 'bad for
morale.'
The EEOC found the manager
"openly hostile towards an
employee's protected EEO
activity," and "failed to ensure
that coworkers understood and
respected the employee's right
to file a complaint."

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Ignorance is Bliss?
If an employee files an EEO complaint against one of your managers, you
might consider not even informing that manager until it becomes apparent
whether the complaint has merit or not. That way, the manager won't face
any temptation to retaliate. On the other hand, if there is a reasonable chance
that the employee has a case, by not bringing the manager into the picture,
you're running the risk that more truly discriminatory actions could be made
by the supervisor, and everyone is worse off.

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The safest route is to be sure that supervisors are well trained to know what
kind of behavior can give rise to an EEO complaint. Also, have a system in
place for employees who feel their EEO rights may have been violated to bring
them to your attention before matters spiral out of control.
And also be sure supervisors realize that even if an employee's claim of
discrimination fails, he or she may still prevail if charges of retaliation are
brought.
Employee complaints about discrimination and retaliation have to be treated
with kid gloves. If you're in doubt about how to handle a complaint, consult
your employment adviser to go over the specifics of the case.

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Toll Free : 877.880.4477
Phone : 281.880.6525
Fax
: 281.866.9426

E-mail : info@hrp.net

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