Compliance with anti-discrimination rules in the workplace is a priority for experts in the field of human resources. Equally as crucial is making sure that employees who complain about perceived prejudice are not punished for doing so, even if the claim that they are complaining about is never proven to be true.
Why is it so vital that we do this? The Equal Employment Opportunity Commission receives the most claims related to retaliation than any other form of a complaint (EEOC).
Oftentimes, an employee will be discriminated against initially because of a protected feature. Then, once they have used their right to complain of discrimination or engage in the EEO process, retaliation claims might ensue. Then, once they have exercised their right to complain of discrimination or participate in the EEO process,
According to the data provided by the agency, more than half of all charges that were submitted during the fiscal year 2021 included a claim of retaliation. As a result, it is absolutely necessary for employers to have effective procedures in place to prevent retaliation and document the reasons for disciplining and firing employees.
Businesses should strive to be as consistent as possible when applying their employment standards. Employers should endeavour to be as consistent as possible in administering their employment policies. In the event that an employer is required to vary from an established routine, the employer should confer with legal counsel to determine whether or not the change is warranted.
What are some of the best procedures to follow to prevent being accused of retaliation? Here are some pointers for business owners and managers.
Recognize What Constitutes Protected Activity in the Workplace
Laws that prohibit discrimination against employees and applicants on the basis of a variety of characteristics, such as age, disability, national origin, race, religion, and sex, are enforced by the Equal Employment Opportunity Commission (EEOC), in addition to other federal, state, and local agencies. Because of these restrictions, it is also against the law for employers to take any kind of retaliatory action against workers who have brought such claims.
Participating in a complaint procedure is protected against retaliation in any case. Notably, a formal complaint is not required in order for the complainant to be protected. Other acts to oppose discrimination are protected as long as the employee was acting on a reasonable belief that something in the workplace may violate EEO laws. This is true even if the employee did not use legal terminology to describe the discrimination. Other acts to oppose discrimination are protected.
The protected activity of an employee might take many different forms. Examples include:
- Bringing an equal employment opportunity allegation, complaint, or lawsuit.
- Participating as a witness or responding to questions during an equal employment opportunity inquiry.
- Bringing issues of discrimination or harassment in the workplace to the attention of a supervisor.
- refusing to accept directions that would lead to prejudice in order to avoid it.
- refusing unwanted approaches or acting to protect others from sexual harassment are both examples of consent-based anti-harassment behaviour.
- putting in a request for an accommodation due to a handicap or religious observance.
- In order to discover whether or not there is possible discrimination in compensation, employees might ask supervisors or coworkers about salary information.
Employers may erroneously feel that only full-time, present workers have safeguards against retaliation, although this is not the case. Regardless of citizenship or authorization to work, prospective workers, current employees working full-time, part-time, probationary, seasonal, or temporary hours, and previous employees who were protected by EEO legislation are all eligible for the safeguards outlined in this section.
When an employee complains about what they consider to be prejudice against a coworker, they are protected from any reprisal that may be taken against them.
Instruct Supervisors on How to Avoid the Most Common Mistakes
Why are charges of retribution so prevalent today? There are a great number of explanations for this. It’s possible that one of the managers at the organisation has been inconsistent in how they administer and enforce the employment standards. Or, it’s possible that a manager took it personally when an employee accused them of being biassed against them and singled out that worker for termination as a result.
Retribution might be a reflexive behaviour for a number of different reasons. Everyone despises the idea of being accused of doing anything wrong. Therefore, it is normal to take it personally when an applicant or an employee engages in protected behaviour, such as submitting a complaint against EEO.
Additionally, an untrained supervisor may perceive employees who complain as being disruptive to the organisation. As a result, this supervisor may try to dissuade employees from continuing to participate in the complaint process, or even decide to fire employees in order to eliminate the “problem” entirely.
Many companies “may not understand or remember in the time that these activities may be unlawful and constitute retaliation under EEO regulations.” Unfortunately, employers may not know or remember in the moment that these actions may be unlawful and constitute retaliation.
Claims of retaliation are so common because, retaliatory behaviour “encompasses a broad spectrum of activities,” which is another reason for their prevalence. It’s possible that managers just don’t have a good grasp on what constitutes retaliatory behaviour.
Supervisors need to be aware that they are legally prohibited from taking any disciplinary action against applicants or employees who participate in the equal employment opportunity process. This includes taking part in the employer’s internal Equal Employment Opportunity complaint procedure.
It’s possible for managers and supervisors to fall into the trap of thinking that the only way to retaliate against an employee is to fire them. However, retaliatory behaviour encompasses a far wider range of actions. As an illustration, retribution might consist of any combination of the following actions:
- threats, cautions, or reprimands relating to one’s place of employment
- performance evaluations that resulted in worse marks.
- positions or areas of employment that are less desired, less prestigious, or both might be lost.
- an investigation into the employee’s job that is more thorough than that of other workers’ for no apparent cause.
Put in place a procedure for dealing with customer complaints.
In order to ensure that proposed employment actions are based on legitimate nondiscriminatory and nonretaliatory reasons, employers should consider designating a management official, hiring in-house counsel, or appointing a member of the HR staff to conduct reviews of proposed employment actions.
In addition, management and those who work in human resources should receive training on how to properly and proactively respond when employees raise concerns about potential EEO violations. This training should cover topics such as how to ask clarifying questions and how to seek additional information to ensure that they fully understand the employee’s concern.
Training may also help guarantee that disciplinary actions and performance assessments are driven by legal and nonretaliatory motives, and this can be accomplished with the assistance of training.
Establish and Continue to Adhere to Consistent Practices
The key to success is consistency. the appearance that particular employees are being singled out for making a complaint or engaging in a workplace inquiry might arise when regulations are not applied uniformly and consistently.
Employers “make sure they have a solid written anti-retaliation policy and that they disseminate it to all personnel.” Retaliation should not be tolerated in any workplace, and employers have a responsibility to make it abundantly clear to their staff that such actions are not only illegal but also need prompt reporting. The need of conducting timely and comprehensive investigations into all concerns.
Policies have to be stated in understandable language and should incorporate the following elements:
- Some examples of activities taken in retaliation.
- Preventative measures to forestall either actual or imagined acts of revenge.
- A means of expressing concerns and airing complaints regarding retribution.
- A unequivocal statement to the effect that workers who engage in retaliatory activity might face disciplinary action or perhaps termination.
Discipline Based on Acceptable Justifications
Even while it is illegal for employers to retaliate against workers for participating in protected conduct, businesses nonetheless have the right to punish or terminate employees for reasons that are fair and justifiable. Before taking any negative action, employers should make sure the choice is based on the following criteria:
- Not based on the age, handicap, national origin, race, religion, sex, or any other protected group of the worker in question.
- Not because the worker decided to object to or report prejudice, or because they chose to join in an inquiry or litigation.
- Either in line with the disciplinary policy of the organisation or, in the event of a deviation from the policy, sufficiently justifiable.
- Employers should seriously consider recording hiring choices in order to strengthen their defence against any potential claims of discrimination.
