November 14, 2018
A year after the #MeToo movement sparked a national conversation about workplace harassment, there was a 12% jump in sexual harassment charges filed with the Equal Employment Opportunity Commission (EEOC), according to the agency’s preliminary sexual harassment data for fiscal year 2018. In a related issue, nearly half (49%) of all EEOC charges in 2017 involved retaliation, making it once again the most frequently filed claim.
Organizations should view the latest EEOC data as a timely reminder to review and revise current anti-harassment policies, reporting procedures and training programs to ensure they clearly explain the interrelationship between harassment and retaliation. Educating and training supervisors and managers on how to identify and avoid the damaging effects of retaliation is an important step in creating a respectful, harassment-free workplace culture. Implementing anti-retaliation training should be essential in all workplaces.
What is retaliation?
Retaliation, like sexual harassment, violates Title VII of the Civil Rights Act. It is illegal for employers to retaliate or take “adverse action” against an employee or job applicant who files a good-faith complaint of discrimination or harassment complaint – or participates in an investigation. And importantly, the law protects employees from retaliation whether or not their original charges are proven to be true.
Retaliation can take many forms, such as firing, demoting, reassigning, disciplining, harassing, bullying and other negative job actions – like spreading false rumors or mistreating a family member of someone who complains.
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In addition to providing protection for filing a complaint or taking part in an investigation, the law protects other activities from retaliation. A list of protected activities can be found in the EEOC’s Enforcement Guidance on Retaliation and Related Issues. They include:
- Communicating with a supervisor or manager about workplace harassment or discrimination
- Reporting an instance of harassment to a supervisor
- Refusing to follow orders that would result in discrimination
- Resisting sexual advances or intervening to protect others
- Requesting accommodation for a disability or a religious practice
- Asking about or complaining about compensation or pay rate
- Talking to coworkers to gather information or evidence in support of a potential EEOC claim
Fear of retaliation feeds a toxic culture
Even though participating in a complaint process is protected from retaliation, fear of retaliation prevents many individuals from speaking up and reporting harassment and discrimination. This fear of retaliation allows a toxic culture to perpetuate, which can lead to even more unlawful behavior.
A Society for Human Resource Management (SHRM) survey of HR professionals found that 76% of non-management employees who said they had experienced some form of sexual harassment in the past year did not report it. The top reasons for not reporting were a fear of retaliation or a belief that nothing would change. SHRM’s director of workplace analytics said the survey results indicate that employees “don’t feel that they have the power to bring allegations forward in a way that won’t harm them,” and recommends that organizations and HR professionals put more effort into creating work environments that “emphasize respect and minimize the fear of retaliation.”
How to avoid retaliation
In its retaliation guidance, the EEOC offers some “promising practices” to help organizations reduce the risk of retaliatory incidents and violations, such as:
- Creating a clearly written anti-retaliation policy and guidance on expectations of behavior, with practical examples of what to do and not to do
- Training all managers, supervisors and employees on the organization’s anti-retaliation policy, and behaviors that are associated with retaliation
- Sending a strong message from top management that retaliation is illegal and will not be tolerated
- Providing guidance to managers and supervisors, who have been accused of discrimination or harassment, on how to handle personal feelings about the allegations when carrying out their duties or interacting in the workplace
- Ensuring that retaliation claims are well documented and providing clear and accurate information to the EEOC staff, EEOC investigator or judge
In the #MeToo era, organizations need to feel confident that supervisors and managers know how to recognize, address and prevent all forms of workplace retaliation. As part of a holistic approach to preventing sexual harassment and discrimination, retaliation training helps ensure that employees in supervisory positions understand their responsibilities to avoid even the appearance of retaliation against employees who report misconduct or participate in an investigation or other protected activities.