Retaliation May Require More Than “An Odd Chill” In the Air At Work
I have long been a fan of Karla Miller’s Work Advice column in The Washington Post. Karla provides salient advice to people who write to her with their workplace conundrums.
This past week, I read with interest as Karla addressed a common issue (at least for lawyers!): possible retaliation against an employee who has filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”), the federal agency that enforces the federal anti-discrimination and anti-harassment laws.
The writer wrote that she had filed a Charge with the EEOC in the past year, but she complains that “[R]ecently, I have noticed an odd chill among my colleagues toward me. I was being considered to work on a team, but another person is now listed as doing what I would have been invited to do. I am suspicious that the top boss is expressing negative opinions about me.”
Karla deftly navigated the questions, quoted EEOC guidance, and sagely explained:
Employment lawyers (reminder: I am not one) have been telling me for years that what most often gets employers in trouble is not harassment or discrimination complaints, but the consequent retaliation. If management is taking potshots at you behind the scenes, they may well end up shooting themselves in the foot.
Next, once an employee complains to their supervisor about sex discrimination, if the employer then demotes or terminates the employee or takes any adverse action, the employer can be held liable for retaliating against the employee for complaining about discrimination.
Next, she explains what retaliation is, according to the EEOC.
“Retaliation” Is A Legal Term And Includes Specific Elements.
To establish a claim for retaliation, an employee need only demonstrate that (1) she was engaged in a “statutorily protected activity” by complaining of or opposing an employment practice which she has a good faith, reasonable basis to believe is unlawful; (2) an “adverse employment action” was taken by the employer; and (3) there is some causal connection between the two, i.e., an adverse action following a statutorily protected activity.
Informing management about unlawful workplace discrimination or filing a Charge is “protected activity” under Title VII of the Civil Rights Act of 1964 (“Title VII”), which includes an anti-retaliation provision prohibiting management from subjecting an employee to an “adverse action,” like, maybe, and depending on the facts, excluding said employee from activities and communications.
But maybe not.
Karla does not tell the writer whether the “chill” she detects or the opportunity she missed out on was retaliation - and she’s right not to do so. She’s not a lawyer.
She doesn’t even play one on TV!
Image by Clker-Free-Vector-Images from Pixabay
The writer’s current workplace predicament could be retaliation … or there could be some other legitimate reason that management awarded this opportunity to another person.
The writer - and her counsel - will have to make that causal connection between any perceived adverse action and the writer’s complaint (the protected activity).
Employer Takeaways
Employers exacerbate the situation when they retaliate against an employee who has complained about discrimination or harassment. What should employers do?
Policies. Have strong, clear anti-discrimination, anti-harassment, and anti-retaliation policies and procedures set forth in your employee manuals and handbooks and follow your policy. An employee handbook should describe prohibited conduct and provide clear examples of retaliation that managers may not otherwise realize are actionable.
Managers. Clarify to management that if an employee reports conduct that could constitute sex, race, age, disability, or some other form of discrimination or harassment, that person will not suffer retaliation.
Reporting. Employers might arrange a reporting mechanism for employee concerns about retaliation and information as to how such concerns might be resolved.
Accountability. Provide a clear explanation that retaliation can be subject to discipline, up to and including termination.
Educate management. Otherwise known as training, but I prefer the term “education.” Training done right is a marvelous thing. Doing it right means interactive training for employees, supervisors, C-suite, and HR staff, too, so that they can recognize, respond to, and prevent unlawful harassment (based on disability, sex, race, etc.). Training should include realistic examples, fact-based scenarios, pop quizzes, whatever.
The point is: HR and supervisors must recognize poor behavior, investigate it, and then follow the company’s policies to address and correct it. Training “done right” includes ensuring that senior leaders promote anti-harassment training and anti-discrimination/ harassment policies to demonstrate the company’s commitment to enforcement of its EEO policies.
Finally, employers should remember that it is far, far, FAR easier to prove retaliation than the underlying discrimination — and easier to create a retaliation situation if you or your workforce don’t know how to deal with a charge or claim or complaint of discrimination.