“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.
RETALIATION CONTINUES TO BE THE MOST COMMON EMPLOYER MISTAKE
Kirk, old friend, do you know the Klingon proverb, ‘Revenge is a dish best served cold’?” Star Trek II, The Wrath of Kahn.
2015 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.
WHAT IS “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 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.
WHERE DO WE GO FROM HERE — WHAT TO LOOK FOR IN 2016 AND BEYOND
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: