Training is the Missing Link in Recent Workplace Retaliation Cases

Retaliation occurs when an employer fires, demotes, harasses, bullies or takes other harmful action against an employee for filing a complaint of discrimination or participating in an internal or external investigation.

In the last couple of weeks, workplace retaliation has been the subject of several discrimination settlements announced by the US Equal Employment Opportunity Commission (EEOC). These recent retaliation cases reflect the continuing rise in retaliation charges and lawsuits. In 2016, an astounding 45% of discrimination charges filed with the EEOC involved employee retaliation.

A recap of a few of the cases highlights the need for organizations to take proactive measures – specifically, anti-retaliation training to teach employees what retaliation is, how and when it can occur and what to do when someone complains of retaliation.

Recap:

• A Wisconsin lighting company will pay $100,000 to resolve charges it fired an employee for not participating in its wellness program. In its lawsuit, the EEOC charged that the wellness program violated the Americans with Disabilities Act (ADA), as applied to the employee.  The EEOC said that after the employee declined to take part in the wellness, the lighting company shifted all the responsibility for the employee’s healthcare premium to her and soon afterward fired her in retaliation for her objections to the program.
• A Houston manufacturer will pay $150,000 to settle charges it revoked a job offer to a qualified utility technician because of his religion and in retaliation for asking the company to accommodate his religious practices. During a pre-employment drug test, the candidate declined to have a lock of his hair cut, due to his religious beliefs, but offered to submit hair from his beard. However, he was sent home without completing the examination and was denied an opportunity to re-test on a different day. The candidate subsequently applied for other jobs, including another utility technician position. The company initially scheduled an interview for that position, but later canceled it.
• An electrical products company will pay $45,000 to settle a workplace retaliation lawsuit alleging it discharged an employee who complained about race discrimination. The employee, who worked through a third-party staffing agency, believed he was passed over for a forklift position because of his race. He complained to the staffing agency recruiter, who notified the company. Soon after, the company fired the employee in retaliation.
• A food manufacturing company in Baton Rouge will pay $35,000 to settle a retaliation lawsuit alleging a kitchen supervisor was fired after reporting he was groped and sexually harassed by a male manager. After reporting the conduct to his immediate supervisor, the employee was told the company would investigate the charges. However, within a few weeks of reporting the sexual harassment, the employee was fired, the EEOC said.

More than money
In addition to paying the settlement charges, the EEOC often requires organizations to take other actions such as:

• Training all employees, managers and supervisors on preventing retaliation, as well as other forms of discrimination and harassment
• Implementing anti-discrimination policies and practices
• Posting anti-discrimination notices in its workplace
• Providing reports of its compliance to the EEOC

The EEOC may also require organizations to appoint a consultant to help develop and implement anti-retaliation policies and provide direction on how to conduct investigations.

Implement a complaint process
As we discussed in a previous post, the EEOC recently updated its retaliation enforcement guidelines to help employers identify and reduce the risk of retaliation. One of the “promising practices” is to implement a formal complaint process – including an ethics hotline –  for employees to report suspected incidents of retaliation.

Traliant Insight
Workplace retaliation remains the No. 1 discrimination complaint. Training managers and supervisors on how to recognize and prevent retaliation, and how to respond to complaints of retaliation is an important component of an effective anti-discrimination and harassment program.