Let's say you're working for an organization and you frequently notice workplace discrimination. These practices could be in the form of wage differences between genders, discrimination because of age, race, national origin or even sexual orientation. As an employee, you want to be able to confront management about unfair practices, especially as they are protected under various laws. Then you notice that you're passed over for a promotion, demoted or even fired with little or no reason given. This is workplace retaliation.
The EEOC has released new guidance against workplace retaliation. Here's what employers need to know.
What does the EEOC enforce?
The EEOC (Equal Employment Opportunity Commission) is a government agency created to interpret and enforce regulations against employment discrimination. Some of the language in the laws may be unclear, especially with changes in society, new gender norms and more acceptance of gay or transgender individuals. Courts will refer to EEOC policies when ruling during disputes between employees and employers so it's imperative that the policies are up to date. Some of the laws the EEOC enforces include:
- Age Discrimination in Employment Act (ADEA) - Protects employees and applicants 40 years and older from discrimination based on age
- Americans with Disabilities Act (ADA) - Protects individuals from discrimination due to disabilities. The new guidance also protects those with disabilities from being forced to submitting to a medical exam.
- Title VII of the Civil Rights Act of 1964 - Protects from discrimination based on gender, race, color, national origin or religion. The new guidance also includes protection against discrimination based on sexual orientation.
- Equal Pay Act - Protects against wage differences between men and women
- Genetic Information Nondiscrimination Act (GINA) - Prohibits the use of genetic information in health insurance and employment
What is Workplace Retaliation?
The previous EEOC guidance was issued in 1998 and since then, retaliation claims have been on the rise, especially in the last 10 years. In fact, the EEOC states that 45% of all discrimination claims also allege retaliation. With the various regulations enacted to protect individuals from employment discrimination, some employees are punished for asserting their rights to fair employment. If an employer or employment policy doesn't allow an employee to assert these rights, this can also be noted as retaliation.
In the new EEOC Enforcement Guidance, the EEOC defines asserting these rights to fair and nondiscriminatory employment as "protected activity".
Protected activity includes:
- Lodging a complaint or communicating with a supervisor against discrimination
- Filing a claim against someone or helping with an investigation of employment discrimination or harassment
- Resisting sexual advances or stepping in to intervene on someone's behalf
- Requesting reasonable accommodation for disability, religious practice or other activity protected by legislation
- Asking co-workers for their salary information to uncover unfair wage practices
These protections are for all employees (full-time, seasonal, part-time, temporary) as well as job applicants and former employees. Managers and human resources professionals are also protected from retaliation, as well as employees who are not citizens or authorized to work in the United States.
The EEOC provides a helpful small business fact sheet that offers examples of workplace retaliation.
What can/can't an Employer do?
Employers must educate themselves on the fair employment laws and what is considered retaliation. Some examples of retaliation include:
- Threatening physical abuse or verbally abusing someone
- Threats of blackmail, reports to immigration or police, or spreading false rumors
- Moving the employee to a less desirable job, reducing their salary or giving a low performance evaluation
- Purposefully making the employee's work life more difficult
- Disciplining or terminating the employee with no proof of poor job performance or workplace disruption
Document employee actions before starting adverse employment action against an employee who is performing poorly, doing something illegal or in any way not behaving as an upstanding employee. If a manager or supervisor wishes to terminate an employee, they must have documented negative actions to prove their claims.
An employer can also offer support to any employee in the complaint process. If an employee feels strongly that there is discrimination and feels heard and supported by their employer, there will less likely be any perceived retaliation or retaliation could be prevented.
Employers would be wise to adopt an anti-retaliation policy and educate employees on any perceived or actual retaliatory actions. This policy should include how to report claims of retaliation, how to resolve disputes and what support can be offered to any employees involved in the complaint process.
What can an Employee do?
The new EEOC guidance requests that an employee disclose proof of retaliation by showing:
- that they engaged in a "protected activity"
- that they suffered an adverse employment action
- that the adverse action was "causally connected" to the protected activity
Employees must keep this in mind if they suspect workplace retaliation and choose to report it. It's advisable to start with an immediate supervisor, manager or HR manager if an adverse action has been taken. Ask questions to see if there are good reasons for the action. If there is no reasonable explanation, and the employer refuses to admit retaliation, the employee can report a claim to the EEOC. In order to prove retaliation, employees must also provide documentation.
The EEOC Guidance isn't law, per se, but the guidance does assist the judicial system in interpreting anti-discrimination laws. Employers should audit their current policies, review this guidance and adopt new policies to ensure a well-trained workforce. All employees should understand these policies, how they can voice complaints and how they will be supported by their employers.
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