Manager Training: Identifying Retaliation

Since 2000, the number of claims filed with the EEOC each year alleging unlawful retaliation has more than doubled. Retaliation is the most common type of discrimination alleged nationally, topping both race (34.7%) and gender (29.5%).  

Are you able to successfully identify potential retaliation claims in your workplace?

Retaliation Scenario

Maria has been working for the I Love Food (ILF) company for over 3 years. Over the past month, Maria has noticed that Audrey, the hostess, tends to seat more Hispanics in her section than in those of her coworkers. When Maria questions Audrey about this, Audrey responds, “It has just worked out that way.”

Maria does not believe Audrey and calmly mentions her observation to her manager, Steven. The next day, Steven calls Maria into his office and issues a written warning for “not getting along” with her coworkers.

Is this retaliation?

The answer may surprise you, but yes, the write up could be considered retaliatory. Maria complained about perceived discrimination in the workplace and the next day, she received a written warning. The close proximity in time between Maria’s complaint and the discipline gives the appearance that the employer disciplined Maria because of her complaint – making this scenario a textbook potential retaliation claim.

What is Retaliation?

Federal and most state laws protect employees and applicants from employer retaliation for engaging in “protected activity,” including filing a charge with the Equal Employment Opportunity Commission (EEOC) or a state agency; cooperating in an investigation, proceedings or litigation; or bringing a complaint to an employer. The retaliation prohibition is quite broad and includes retaliation against a person who objected to a practice that is legal but that the person reasonably believed to be illegal.

Retaliation occurs when an employer takes an “adverse action” against an employee because he engaged in a protected activity. An adverse action is an action taken by the employer to try to punish an employee for engaging in protected activity or discourage further engagement in such activities.

Examples of adverse actions include:

• Employment actions such as non-selection/refusal to hire, reprimands, denial of promotion, demotion, suspension, and termination;
• Other actions affecting employment such as denial of job benefits, threats, unjustified negative evaluations, unjustified negative references, harassment, 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.

The increased frequency of retaliation claims makes them the most dangerous claims employers face. Therefore, it is important to recognize situations where retaliation claims can arise and understand how to prevent these claims from occurring in your workplace.

For more information, please contact your certified HR expert. Not a current Stratus HR client? Book a free consultation and our team will contact you shortly.

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Source: EPLI Pro