We’ve already talked about how the EEOC defines the different elements of a retaliation claim. While the Enforcement Guidance offers some clarification, it also defines those elements very broadly. Many feel that the Enforcement Guidance makes it harder (but it is not impossible) for employers to impose legitimate disciplinary measures on employees who may be under-performing or behaving badly. The burning question now is: How do you do it and steer clear of allegations of retaliation? Funny you should ask that. The EEOC provides some help there, in the final section of its Enforcement Guidance, entitled Promising Practices, and that’s our topic this week, so join The EmpLAWyerologist after the jump to learn more…
(image from laboremploymentlawnavigator.com)
As helpful as this section aims to be, the EEOC does state “these steps may help reduce the risk of violations. However, the Commission is aware there is not a single best approach for every workplace or circumstance…Moreover, adopting these practices does not insulate an employer from liability or damages for unlawful actions. Rather, meaningful implementation of these steps may help reduce the risk of violations, even where they are not legal requirements”. While the EEOC is not promising that if you take any of the steps it recommends that you won’t get sued or won’t be liable, your chances of minimizing and perhaps avoiding liability are better if you do. Here they are:
A. Written Employer Policies in plain language that “provide practical guidance” as to your expectations with some easily understandable do’s and don’ts. Your policy should also include:
- examples of retaliation that managers may not otherwise realize are a problem, including actions that would not be “cognizable as discriminatory disparate treatment” but that would be enough to state a claim for retaliation because they are likely to deter a reasonable person from engaging in protected activity;
- proactive steps for avoiding actual or perceived retaliation, including practical guidance on interactions by managers and supervisors with employees who have lodged discrimination allegations against them;
- reporting mechanism for employee concerns about retaliation, including access to informal resolution mechanisms;
- clear explanation that retaliation can be subject to discipline, up to and including termination.
You should also re-visit your current policies and remove any punitive policies, whether formal or informal, that are punitive in nature and could deter employees from engaging in protected activity (e.g. inquiring, disclosing, discussing wages).
B. Training: for all managers, supervisors and employees on your anti-retaliation policy. Per the EEOC, you should also consider:
- Sending a message to top management that retaliation will not be tolerated, providing information on policies and procedures in different formats, and providing periodic refresher training;
- Tailoring training to address specific deficits in EEO knowledge and behavioral standards that have arisen in your workplace, ensuring that employees know what conduct is protected activity and providing examples of how to avoid problematic situations that have occurred or are likely to occur;
- Offering explicit instruction on alternative, proactive, EEO-compliant ways any such situations could have been addressed, including scenarios and advice to managers and supervisors to ensure that discipline and performance evaluations are motivated by legitimate, non-retaliatory reasons;
- Emphasizing that anyone accused of EEO violations should not act on feelings of revenge or retribution, while acknowledging that such emotions may occur;
- Including training for management and HR staff on how to proactively respond to employees’ concerns about p potential EEO violations, (e.g. seeking clarification and additional information to ensure proper understanding of each question/concern, consulting, with superiors, as needed to address the issue(s), following up as soon as possible with the employee raising the concern);
- Including in the training employees working in all workplace settings, such as those in manufacturing and service industries, manual laborers and farm workers;
- Considering overall efforts to encourage a respectful workplace.
C. Anti-Retaliation Advice and Individualized Support for Employees, Managers and Supervisors: including information and advice on how to report alleged retaliation and how to avoid engaging in it. Managers and supervisors accused of retaliation and/or discrimination should receive guidance on how to handle any personal feelings about the allegations when carrying out managerial functions. Information should also include tips for avoiding actual or perceived retaliation and a go-to person for advice on managing the situation. You might even consider including it in a debriefing for all managers accused of discrimination/retaliation, immediately following such an accusation.
D. Proactive Follow-Up by checking in with employees, managers and witnesses during the course of any EEO matter and ask about any concerns regarding the alleged retaliation and provide guidance, “to identify issues before they fester, and to reassure employees and witnesses of the employer’s commitment to protect against retaliation”. It also provides an opportunity to ensure that managers named in discrimination matters pending over a long period of time have adequate support and advice.
E. Review of Employment Actions to Ensure EEO Compliance by designating an individual to review proposed employment actions of significance to ensure that they are based on legitimate, non-discriminatory, non-retaliatory motives. The reviewer(s), according to the EEOC, should:
- require decision makers to provide reasons and supporting documentation for their actions;
- review performance evaluations to ensure they are supported by facts and are free of unlawful (i.e. discriminatory or retaliatory) motivations, and emphasize to managers the need for consistency;
- identify and implement useful process changes when they find retaliation has occurred;
- review available data and/or resources to identify any organizational components with compliance deficiencies, identify the causes and “implement responsive training, oversight, or other changes” as appropriate.
In case all that is not enough for you, you can find more suggestions here.
Not sure which suggestions, if any are appropriate for you? When in doubt, call your employment counsel!
C’mon back next week when we move on to an exciting new topic. Happy trails!
Disclaimer: Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
Are you a N.J. employer/business owner? Join the new LinkedIn group, New Jersey Business Litigation Forum, run by my friend and colleague, Gene Killian. Click here for more info.
If you’ve missed my previous webinars on What Every Employer needs to Know About Severance Arrangements, you can catch it live at 1pm EST on Thursday, September 29, 2015. Click here to register.
Before choosing an attorney, you should give this matter careful thought.
The selection of an attorney is an important decision.
If you find this communication to be
inaccurate or misleading, you may report it to the Committee on Attorney Advertising
Hughes Justice Complex, CN 037, Trenton, NJ