Retaliation: Never Good for Business, Always Illegal

Let’s open today’s post with a few words of wisdom from John Rowe, the Chicago District Director of the EEOC:

Any employment discrimination problem — sexual harassment or anything else — can always be made worse and more injurious to the conduct of the employer’s business. Retaliation is guaranteed to do that. It never makes sense, it is never good for business, and it is always illegal.

retaliation

And it doesn’t just apply to discrimination complaints. Punishing or firing an employee who complains about a wage and hour issue will get a business in just as much hot water.

Of course, none of my perceptive and discerning readers would consider retaliating against an employee who reports possible sexual harassment, complains of unpaid overtime or requests FMLA leave.

And yet, somebody must not have gotten the message. A whole lot of somebodies, as a matter of fact. According to the EEOC, retaliation claims are now the most frequently-filed type of claim, in both the private and government sectors.

What you don’t know COULD hurt you

Unfortunately, many employers — even those with a genuine commitment to avoiding retaliation — may be operating under some misconceptions. The problem is, of course, what you don’t know can hurt you. In fact, in the case of retaliation, your business could suffer in two ways:

  1. Supervisors who haven’t been adquately trained about what retaliation is and who it covers might retaliate against an employee in the heat of the moment without realizing the consequences of their actions. Or they could take an action that was perfectly proper, but document it incorrectly, making it appear that their action was retaliatory.
  2. Companies may hesitate to take any disciplinary action against employees who have filed (or threatened to file) a complaint, regardless of the employee’s behavior. This could lead to resentment, and possible misbehavior, among other employees, who see the one “squeaky wheel” apparently getting away unscathed with otherwise unacceptable behavior.

For anyone still thinking retaliation is not all that big of a problem, consider the recent case of EEOC v. Cognis Corp. In this case, the company tried to get all employees to sign an agreement that they wouldn’t file any EEOC complaints, ever. Even for things that might not have happened yet. The problem with this, of course, is that it’s illegal. You can’t force employees to choose between their job and their legal rights.

One long-time employee refused to sign, and was fired. He filed a complaint with the EEOC alleging the company retaliated against him because he stood up for his civil rights, who took the company to court. The court found the company had retaliated against the employee — and in a rare move granted the EEOC summary judgment.

At the end of January 2013, the case was finally settled — to the tune of half a million dollars! — for a single case of retaliation against one employee.

It doesn’t have to be this way

Fortunately, there are several things you can do:

  • Start by reading this informative article I found from the law firm of Fox Rothschild: 5 Things You Need to Know About Retaliation. This will answer some of the most common questions employers have about retaliation. Keep in mind, while they’re writing from the perspective of a discrimination lawyer, retaliation also applies in cases involving the Fair Labor Standards Act, Family Medical Leave Act, and others.
  • If any employee files a compliant of any kind (wage and hour, discrimination, etc.) or requests leave to deal with a medical issue (their own or a family member’s) consult immediately with your HR Department and/or your employment law attorney to make sure your response complies with the law.
  • Train your supervisors and managers to recognize and avoid retaliatory acts. Before anyone takes any employment action that would directly affect an employee who has filed a complaint or requested leave — or that would affect a family member or fiancé of such an employee — check with your HR Department. If your company is small and doesn’t have an HR Department, check with your employment law attorney. Make sure the non-retaliatory reason for the action is legitimate, credible and properly documented.

When we think someone is trying to hurt us or damage something important to us, for many of us the natural first reaction is to “get back” at the complainer. When that someone is an employee complaining about their working conditions or pay, though, lashing out without thinking can hurt you and your business far more than the original complaint.

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