Question

Retaliation has been the number one filed EEOC complaint now since 2010, surpassing racial and sexual harassment and discrimination for the first time then, and since then. Often, disciplinary actions result in EEOC filings. Discipline is an area of Human Resources that can certainly create the potential for legal liability for employers. What are some good guidelines to follow? What are some pitfalls to avoid? How might valid policies be structured and investigations be handled to ensure that retaliation complaints do not result from disciplinary actions?

Answer 1

Over the past decade, the Equal Employment Opportunity Commission (EEOC) has reported that retaliation is the most common issue alleged by federal employees and the most common discrimination finding in federal sector cases. Nearly half of all complaints filed during fiscal year (FY) 2013 were retaliation complaints, with 42 percent of findings of discrimination based on retaliation.

In fact, retaliation has been the most frequently alleged basis of discrimination in the federal sector since fiscal year 2008. In addition, the number of discrimination findings based on a retaliation claim has outpaced other bases of discrimination

A manager may not fire, demote, harass or otherwise "retaliate" against an individual for filing a complaint of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, disability and genetic information also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding.

It is important to understand how retaliation manifests and to prevent it from occurring. If retaliation for such activities were permitted, it would have a chilling effect upon the willingness of individuals to speak out against employment discrimination or to participate in the EEOC's administrative process or other employment discrimination proceedings. Thus, EEO practitioners must work diligently with managers to ensure that retaliation is not permitted in the workplace.

It is obvious that the cause and effect of interpersonal conflicts can potentially implicate a legal process. This is particularly apparent with retaliation law because the legal standard requires an examination of the behavior after the allegation. The standard for proving a retaliation claim requires showing that the manager's action might deter a reasonable person from opposing discrimination or participating in the EEOC complaint process.

Examples from past cases provide instructive illustrations of typical retaliatory behavior:

In a recent case, an employee who had filed several unsuccessful EEO complaints, subsequently sought promotions within the organization. The employee learned that her manager had placed information about the previous EEO proceedings in her personnel file and communicated that the employee had filed several complaints when contacted for reference checks. The EEOC found that the statements made during the reference check were retaliatory and further that the EEO information placed in the employee's personnel file was unnecessary and hindered her promotional opportunities.

o address retaliation, organizations must recognize both the potential for retaliation and the interaction of psychological and organizational characteristics that contribute to the likelihood of retaliation. Several factors ultimately affect whether a manager will engage in retaliation. These include the manager's psychological traits, perceptions of the organizational culture, and organizational opportunities.

At the psychological level, researchers have found that a variety of personality traits are associated with retaliation. For example, researchers have suggested that those with a sense of entitlement will experience offenses much more emotionally than others and take them much more personally.  As such, these individuals are more likely to ruminate over the offense, ultimately seeking retaliation. Similarly, authoritarian personalities, people who place a high value on status in group settings, are predisposed to retaliation when offended, particularly if that offense is from someone of a "subordinate" status. Extraverts, on the other hand, are much more likely to seek non-aggressive resolution in conflict situations, forgiving offenders in an attempt to salvage the relationship. Such individuals are less likely to ruminate and seek retaliation.

While it may be difficult not to take an EEO allegation personally, managers should take a step back to consider their reactions in these situations. As seen in the earlier case examples, a negative change of behavior toward an employee after an EEO allegation can be perceived as retaliatory. To prevent retaliation from occurring, managers should take the following actions:

• Avoid publicly discussing the allegation;
• Do not share information about the EEO activity with any other managers or subordinates;
• Be mindful not to isolate the employee;
• Avoid reactive behavior such as denying the employee information/equipment/benefits provided to others performing similar duties;
• Do not interfere with the EEO process;
• Provide clear and accurate information to the EEO staff, EEO Investigator, or Judge; and
• Do not threaten the employee, witnesses or anyone else involved in the processing of a complaint.

It is also important for federal agencies to help their managers understand the behaviors associated with retaliation by incorporating this information into organizational training. Training efforts should be organic to the agency's culture with a particular focus on management training. Often, managers are not prepared for the inevitable conflicts associated with managing human relations within the work setting. These preventive training efforts will assist in the reduction of both EEO and non-EEO (e.g., grievances and whistleblower) complaints.

In addition to training, EEO and civil rights programs within the agency should explore ways to provide information to managers at the outset of the complaint process. This information should acknowledge the potential emotional response involved with being accused of a discriminatory action, as well as the problematic implications of seeking to avenge any perceived offense. By acknowledging the potential negative reactions managers may experience when faced with a discrimination allegation, and reviewing examples of both constructive and problematic responses, these education efforts should help managers to focus on the continued work interaction and relationship with employees.

The EEO complaint process can be a stressful and an emotional experience for both the employee and manager. Notwithstanding this reality, with strategic education and self-analysis, organizations can take the necessary proactive steps to diminish the likelihood of retaliation.