How to Avoid the Most Popular EEOC Charge — Retaliation

18 June 2012 Labor & Employment Law Perspectives Blog

According to charge statistics maintained by the EEOC, retaliation charges accounted for more than 37 percent of all charges filed with the agency in FY2011, totaling more than 37,300 charges. Retaliation charges accounted for the largest percent of charges filed with the EEOC (race discrimination was second, totaling approximately 35,300 charges).Retaliation charges are so popular because employees who bring retaliation charges have a higher degree of success than those that bring a regular discrimination charge. First, there is a lower standard of harm that must be proven for a successful retaliation lawsuit thanks to the U.S. Supreme Court case, Burlington Northern & Santa Fe Railroad v. White (2006). Even though a discrimination plaintiff has to prove that he or she suffered a “materially adverse employment action,” a retaliation plaintiff only needs show that the employer undertook some conduct that may dissuade him or her from making or supporting a charge. Second, juries inherently distrust employers; retaliation (versus discrimination) “makes sense.”

However, there are some proactive steps an employer can take that may help increase the odds of avoiding retaliation charges:

1. Clear and Unambiguous Policy
- Retaliation is not permitted
- Describes the parameters of inappropriate conduct (as best as possible)
- Must be in writing
- Includes a reporting and grievance procedure, listing specific positions to whom the employee can report a claim of retaliation
- Contains an acknowledgement of receipt
2. Prompt Investigations
- Remember that anyone who participates in an investigation is likely protected from retaliation (not just the employee who makes complaint)
- Communicate results of the investigation to the grievant
- Take effective remedial measures; carefully review ALL discipline before imposing (ensure that it is consistent with past practices)

3. Train Management
- On the policy, in general (ensure everyone understands)
- Who is protected from retaliation (participants, complainants, sometimes persons related to complainant)
- What can constitute retaliatory conduct; if in doubt, consult with HR

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