Monthly Archives: February 2016


“Those who don’t know history are doomed to repeat it.”  Edmund Burke

The best and easiest way to avoid HR mistakes in 2016 is to observe  employers’ mistakes in 2015.  Last Thursday, the U.S. Equal Employment Opportunity Commission (EEOC) released detailed breakdowns of the 89,385 charges of workplace discrimination that the agency received in fiscal year 2015.

The EEOC statistics offer employers an excellent guide as to the most common employee claims to avoid, and as to what laws the EEOC is most interested in enforcing in 2016.  Knowing this, businesses can avoid the fate of employers who paid over half a billion dollars to resolve claims in 2015.


Kirk, old friend, do you know the Klingon proverb, ‘Revenge is a dish best served cold’?”  Star Trek II, The Wrath of Kahn.

illinois-employment-lawyer2015 EEOC data shows that retaliation charges increased by nearly 5 percent.  Retaliation was the most frequently filed charge of discrimination, with 39,757 charges, making up a whopping 45 percent of all private sector charges filed with EEOC.

Given the increasing number of retaliation claims, every employer should be intently focused on avoiding any conduct that could be deemed to be retaliation.


There are three main terms that are used to describe retaliation. Retaliation occurs when an employer takes an adverse action against a covered individual because he or she engaged in a protected activity. Let’s understand each term:

Adverse Action
An adverse action is an action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding.  Examples of adverse actions include:

  • employment actions such as termination, refusal to hire, and denial of promotion,
  • other actions affecting employment such as threats, unjustified negative evaluations, unjustified negative references, or 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.

Adverse actions do not include petty slights and annoyances, such as stray negative comments in an otherwise positive or neutral evaluation, “snubbing” a colleague, or negative comments that are justified by an employee’s poor work performance or history.

Even if the prior protected activity alleged wrongdoing by a different employer, retaliatory adverse actions are unlawful.  For example, it is unlawful for a worker’s current employer to retaliate against him for pursuing an EEO charge against a former employer.

Covered Individuals

Covered individuals are people who have opposed unlawful practices, participated in proceedings, or requested accommodations related to employment discrimination based on race, color, sex, religion, national origin, age, or disability.  Individuals who have a close association with someone who has engaged in such protected activity also are covered individuals.  For example, it is illegal to terminate an employee because his spouse participated in employment discrimination litigation.

Protected Activity
Protected activity includes:

Opposition to a practice believed to be unlawful discrimination
Opposition is when an employee informs an employer that the employee believes that it is engaging in prohibited discrimination. Opposition is protected from retaliation as long as it is based on a reasonable, good-faith belief that the complained of practice violates anti-discrimination law; and the manner of the opposition is reasonable.

Examples of protected opposition include:

  • Complaining to anyone about alleged discrimination against oneself or others;
  • Threatening to file a charge of discrimination;
  • Picketing in opposition to discrimination; or
  • Refusing to obey an order reasonably believed to be discriminatory.

Examples of activities that are NOT protected opposition include:

  • Actions that interfere with job performance so as to render the employee ineffective; or
  • Unlawful activities such as acts or threats of violence.
Participation in an employment discrimination proceeding
Participation means taking part in an employment discrimination proceeding. Participation is protected activity even if the proceeding involved claims that ultimately were found to be invalid.  Examples of participation include:

  • Filing a charge of employment discrimination;
  • Cooperating with an internal investigation of alleged discriminatory practices; or
  • Serving as a witness in an EEO investigation or litigation.

A protected activity can also include requesting a reasonable accommodation based on religion or disability.


Retaliation is but one of many mistakes businesses can make in the “heat” of the business world.  For a snapshot of other common employer foibles, here is a comprehensive look at the 2015 EEOC statistics showing all employee charges of discrimination:

  • Retaliation: 39,757 (44.5% of all charges filed)
  • Race: 31,027 (34.7%)
  • Disability: 26,968 (30.2%)
  • Sex: 26,396 (29.5%)
  • Age: 20,144 (22.5%)
  • National Origin: 9,438 (10.6%)
  • Religion: 3,502 (3.9%)
  • Color: 2,833 (3.2%)
  • Equal Pay Act: 973 (1.1%)
  • Genetic Information Non-Discrimination Act: 257 (0.3%)

It is likely that, at least in the short term, these percentages will hold and employee charges of discrimination will continue to increase.


Stay ahead of the curve by conducting management training and employee seminars on ways to avoid retaliation and other charges of discrimination.  In addition to these tools, HR Law Insider serves as a valuable resource for businesses seeking the advantage of cutting edge HR and employment law information.

Art Bourque has guided businesses and individuals in various employment law matters, and provides seminars and management training on the topics in this article.  Mr. Bourque provides three main types of services on the issue of retaliation:

  • Management training and employee seminars to identify and prevent potential claims of retaliation
  • Day-to-day management counseling to help businesses confronted with situations where there is a risk of a retaliation claim (e.g. employer wishes to discipline or terminate an employee who may be in a protected category or have engaged in protected activity)
  • Defending retaliation claims before the EEOC and in the courts.

Contact Mr. Bourque with any questions regarding these or other employment or human resource issues.  In the interim, let this famous  clip remind us of the dark side of retaliation:


If you want others to believe that you are good under pressure, you must first persuade yourself.  Michael Lewis

Super Bowl week is finally upon us.  Who will win?  Who might “choke” and be the goat?  What strategies are the players and coaches using to manage the massive stress associated with the biggest game of their lives?

Big Short and Blind Side author Michael Lewis brilliantly captures the “penalty” paid by NFL kickers who choke:  “At the end of Super Bowl XXV, in 1991, Scott Norwood, who up to that moment has enjoyed a wonderful six-year career, misses a 47-yard field goal for the Buffalo Bills. The Bills lose to the New York Giants, 20-19. Norwood retires after one more season and eventually becomes a real estate agent who spends part of his day selling houses and another part avoiding phone calls from sports journalists seeking either to mine his tragedy for pathos or to get even with him on behalf of the city of Buffalo. A decade after his missed kick, he tells a reporter that he dreads the weeks leading up to the Super Bowl, when his failure is invariably revisited on national television.”

In many ways, workplace stress is no different than that confronted by NFL players.  There is the day-to-day challenge of the job — stress caused by the proverbial grind.  And then there is a different sort of stress upon which this articles focuses:  acute stress which results from of a huge, watershed event at which we must perform at a high level, or fail.

For football players, acute stress escalates during last minute drives and in playoff games.  For the rest of us, it can soar in job interviews, big meetings, and in a variety of other instances where it is seemingly “do or die.”  Let us explore ways to manage this stress.

Carson Palmer will forever remember his meltdown for the ages


Arizona Cardinals’ quarterback Carson Palmer played poorly on the Sunday before last.  Did he choke or just have a bad game?  Palmer is normally such a good player it is easy to say he choked.  But, on the other hand, those around him — his lineman and wide receivers — did not play well.  Did Palmer bring them down, or vice-versa?  Or, was the lopsided score simply the result of fact that the Carolina Panthers are that much better than the Cardinals?

We will never know the answers to these questions with certainty.  What we can confidently know is that there are many techniques and strategies to manage our stress before we enter the arena or boardroom.


In 2003, I signed up to run the Hardrock 100 endurance run.  Shortly afterward, waves of doubt and adrenaline burst into my mind and body after reading this article describing the event:  It’s Gonna Suck to Be You.

I turned to my older brother, Dave, for advice.  He told me that the adrenaline and other hormones pumping in my veins were a vestige of “fight or flight” wiring in my animal brain.  This wiring causes us stressful, emotional reactions, as if we are being chased by an animal that wants to kill us.  Its surge of power enables us to kill our would be predator or run like hell in the opposite direction.

Dave said that once I realized this I would understand that my hormone and blood pressure blow-up could be controlled by simply reminding myself of the truth:  that I wasn’t being chased and I wasn’t going to die.  Rather, I was pre-wired from birth with a “leftover” from my primal ancestors — a power booster that comes with negative side effects.  This leftover was, for the most part, no longer necessary in the modern world.

I have used Dave’s reminder many times over the years to calm myself before trials and other stressful events.  How do you control your inner animal?  What strategies do you use, if any, to manage stress and how you perform?  Let’s add a few to your toolbox.


Controlling your emotions is the best way to avoid choking at a business meeting or otherwise.  But that begs the question:  how can emotions be controlled in an otherwise fear-drenched environment?  Here’s how:

  • Rehearse and rehearse some more:  this is a sure-fire way to gain confidence about your ability to perform
  • Train under anxiety:  as shown here, practicing your task under stressful conditions improves performance under stressful circumstances
  • Do not over-scrutinize your upcoming performance — focus on a single word or idea that sums up your entire presentation (“smooth” or “forceful,” for instance)
  • Be a stoic:  direct all efforts your at to what you can control, and disregard things over which you have no influence
  • Focus on process, not results
  • Avoid building up the event beyond what it is (watch the short Hoosiers video at the end of this article)
  • “Play your own game”: keep your focus on your strengths, your game plan and what you are doing, and not on your opponent
  • When in a non-adversarial setting, understand the wants and needs of your audience to be sure you connect with them
  • Put yourself in the “arena” as much as possible; then you won’t be so afraid to lose.  As Hugh Glass said in The Revenant:  “I ain’t afraid to die anymore. I’d done it already.”
  • Practice relaxation techniques such as yoga or meditation
  • Engage in physical exercise as a pressure release valve


Your next business or personal challenge may be just in front of you.  It may not be the Super Bowl, but if it is meaningful to you, why not perform at your best?  Hopefully, this article has provided some tools to do just that.

Consider watching this short Hoosiers video the night before or morning of your event or presentation.  Then go out and be who you are — a winner no matter the result:


My brother Dave’s advice helped me not to “choke” at the Hardrock 100.   I overcame my greatest fear — not finishing.  It turned out, however, that I had a hard day (or two) because my feet blistered-up only 10 hours into the event.  As a result,  the race turned into a 43 hour suffer fest.  The lesson:  self-confidence is great, but it’s no substitute for proper sock selection!

The prize for finishing? The chance to kiss the Rock and hang out with this mountain man from Maine:

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