EEOC's #1 Complaint: Retaliation

In late February, the EEOC released data on its 2020 charges of workplace discrimination. A total of 67,448 charges of workplace discrimination were filed. This resulted in the agency securing $439.2 million for victims of discrimination. The full report is available here. There’s a lot of data to sift through, so let me point out some highlights. 

In 2020, Oregon had 222 discrimination claims filed with the EEOC. The largest number of complaints (56.3%) came in the area of retaliation. That’s an increase of 2.4% from 2019. Let’s face it, whether intentional or unintentional, discrimination happens in the workplace so it’s imperative that you have policies, practices, procedures and training to help minimize the risk of discrimination. However, even with your best efforts, an employee might feel that they were discriminated against and file a complaint. If the complaint was with the EEOC, then you will need to comply with the EEOC complaint resolution process. Now, you also need to be concerned about retaliation and managing risk associated with that type of claim. 

Even if the initial claim of discrimination is found to be without merit, a follow-up complaint of retaliation could be the nail in the coffin.  Retaliation occurs when employers treat applicants, employees or former employees, or people closely associated with these individuals, less favorably for:

• Reporting discrimination;
• Participating in a discrimination investigation or lawsuit (for example, serving as a witness), or;
• Opposing discrimination (for example, threatening to file a charge or complaint of discrimination).

Retaliation is illegal. Here are five tips to help prevent it:

• Don't take out your frustrations about the complaint on the employee. Treat the employee as if they had never reported discrimination, assisted with a discrimination investigation or lawsuit, or opposed discrimination.
• Treat employees consistently. Before making employment decisions that may negatively affect the employee, ensure that you are acting consistently with past practice or that you can justify treating the employee differently for a legitimate business reason.
• Explain your rules and expectations to employees. Ensure that employees understand your business's discrimination policies. Inform employees that retaliation is illegal and will not be tolerated. Training can be one of the best ways to ensure this step and also gives you an advantage when it comes to potential settlements.
• Establish an open door policy. Encourage employees to share any concerns about discrimination with you. Respond promptly and effectively to discrimination questions, concerns and complaints. Remember, a policy isn’t worth the paper it’s written on if you don’t have an open door practice.
• Hold employees accountable. Ensure that employee policies are followed and enforced consistently. Hold employees accountable for complying with and enforcing discrimination policies.

Practicing these five tips won’t guarantee that you won’t get a complaint of retaliation, but they will show a good faith effort on behalf of the organization when it’s reviewed by the EEOC.

If you have more questions about this or other EEOC matters, reach out to Cascade.