The U.S. Equal Employment Opportunity Commission reported retaliation is the most common discrimination charge filed against employers, representing 45 percent of all claims filed in 2015. In fact, over the past decade, the number of suits has increased dramatically.
In 2016, the EEOC released new guidelines that aim to protect employees from retaliation or similar forms of harassment. This is the first such update since 1998. For employers and human resources departments, this means being more proactive about working with staff as well as protecting executives and the business from possible claims. Here's what you need to know:
What the EEOC considers retaliation
There are three main parts of what the EEOC can deem retaliation. First, an employee must engage in a "protected activity", such as filing a complaint or issuing a claim of harassment or discrimination. Next, an employer, manager or executive must take what is called an "adverse action," and thirdly, there must be a connection with the initial activity. Essentially, if a superior does something negative or harmful seemingly in response to a serious workplace claim, there is ground for a retaliation case.
What the EEOC changed
The framework for what the EEOC considers retaliation didn't change too drastically. Instead, the EEOC defined the elements of retaliation in an effort to provide more context and protection for employees.
"The new pathways for a retaliation suit are important to understand."
Under the new ruling, what the EEOC deems a protected activity can be both explicit or implicit. This means that a direct or written complaint isn't necessary for an eventual retaliation claim. So long as the EEOC finds an initial protected activity to be reasonable, it can still consider a retaliation claim to be valid. An adverse action that constitutes retaliation has been changed as well. The EEOC stated that this was an effort to include more acts that could deter or discourage an employee from filing or following up with an initial protected activity. This also extends to include actions taken outside of work or taken against a family member or other third party, such as a threat to a spouse, close business partner or any other closely linked individual.
The EEOC also worked to make the final leg of a retaliation suit, the so-called "casual connection," more broad. Specifically it sought to create "a 'convincing mosaic' of circumstantial evidence" to connect an initial protected activity and an adverse reaction. This can include an individual's entire employment history so long as there is substantial evidence of an employer acting in an inappropriate way in response or connection to a claim by an employee. The new pathways for a retaliation suit are important to understand because such knowledge gives business a chance to act.
How employers can prepare
By broadening terms, the EEOC creates new grounds for employees to seek retaliation damages. For that reason, businesses must spend extra effort working to mitigate any risk. This starts by creating clear expectations from leadership that outlines what retaliation looks like. An HR outsourcing partner can be a resource when it comes to creating such a guideline as well as implementing training for executives and managers. Be sure these team members understand the possible risk and reinforce that the business will not tolerate any retaliatory behavior. In this way, individuals that could be liable to a retaliation suit can better understand the issue. Because the EEOC has chosen to shine a light on this problem, proactive behavior from businesses is even more important.
Make it clear to employees how they can go about filing a possible claim. This step not only helps staff feel more comfortable with addressing issues but also makes sorting through a suit more straightforward and organized. An HR outsourcing partner can also offer advice for setting up such a framework.