Bolton HR Consulting and Leadership Development. Facts About Retaliation-Definitions Retaliation...
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Retaliation Charges: How to Protect and Prevent Bolton HR Consulting and Leadership Development
Bolton HR Consulting and Leadership Development. Facts About Retaliation-Definitions Retaliation occurs when an employer, employment agency or labor organization
Facts About Retaliation-Definitions Retaliation occurs when an
employer, employment agency or labor organization takes an adverse
action against a covered individual because he or she engaged in a
protected activity.
Slide 3
Definitions Adverse Action An adverse action is an action taken
to try and keep someone from opposing a discriminatory practice, or
from participating in a employment discrimination proceeding.
Examples of adverse actions are: Termination, refusal to hire and
denial of promotion. Other actions affecting employment such as
threats, unjustified negative evaluations, unjustified negative
references or increased surveillance. Any other action such as an
assault or unfounded civil or criminal charges that are likely to
deter reasonable people from pursuing their rights.
Slide 4
Definitions Adverse Action Adverse actions do not include Petty
slights and annoyances, such as stray negative comments in an
otherwise positive or neutral evaluation. Snubbing a colleague, or
negative comments that are justified by an employees poor work
performance or history.
Slide 5
Definitions Adverse Action It is unlawful for a workers current
employer to retaliate against him or her for pursuing an EEO charge
against a former employer. However, employees are not excused from
continuing to perform their jobs or follow their companies
legitimate workplace rules.
Slide 6
Definitions Covered Individuals Covered individuals are people
who have opposed unlawful practices, participated in proceedings or
requested accommodations related to employment discrimination based
on race, color, sex, religion, national origin, age, or disability.
Individuals who have a close association with someone who has
engaged in such protected activity also are covered individuals
Example: It is illegal to terminate an employee because his or her
spouse participated in employment discrimination litigation.
Slide 7
Definitions Covered Individuals Individuals who have brought
attention to violations of law other than employment discrimination
are not covered individuals for purposes of anti- discrimination
retaliation laws. For example: Whistleblowers who raise ethical,
financial, or other concerns unrelated to employment discrimination
are not protected by the EEOC enforced laws.
Slide 8
Definitions Protected Activity Opposition is informing an
employer that you believe that he/she is engaging in a prohibited
discrimination. Opposition is protected as long as it is based on a
reasonable, good-faith belief that the complained of practice
violates anti-discrimination law; and the manner of the opposition
is reasonable. Examples are: Complaining to anyone about alleged
discrimination against oneself or others. Threatening to file a
charge of discrimination. Picketing in opposition to
discrimination. Refusing to obey an order reasonably believed to be
discriminatory.
Slide 9
Definitions Protected Activity Examples of activities that are
not protected opposition include: Actions that interfere with job
performance as to render the employee ineffective. Unlawful
activities such as acts or threats of violence.
Slide 10
Definitions Protected Activity Participation means taking part
in an employment discrimination proceeding. Participation is
protected even if the proceeding involved claims that ultimately
were found to be invalid. Examples of participation include: Filing
a charge of employment discrimination. Cooperating with an internal
investigation of alleged discriminatory practices. Serving as a
witness in an EEO investigation or litigation.
Slide 11
Definitions Protected Activity A protected activity can also
include requesting a reasonable accommodation based on religion or
disability.
Charge Statistics Retaliation Title VII Only 200420,24025.5%
200519,42925.8% 200619,56025.8% 200723,37128.3% 200828,69830.1%
200928,94831.0% 201030,94831.0%
Slide 14
Charge Statistics Total Charges 2010 Race35,89035.9%
Sex29,02929.1% National Origin11,30411.3% Religion3,7903.8%
Age23,26423.3% Disability25,16525.2% Equal Pay1,0441% Gina201.2%
Retaliation36,25836.3%
Slide 15
Charge Statistics 2010 was the first year that Retaliation
Charges were the highest percentage of all charges. Indications
that this trend will continue in 2011. Claims including a
retaliation charge rose by the year ending in 2008 by 23%, while
claims that did not involve retaliation rose 12% during the same
period.
Slide 16
Court Case Thompson v. North American Steel The issue in this
case was can an employee who claims they were fired because his
fiance filed a sex discrimination charge against their mutual
employer sue for retaliation under Title VII of the 1964 Civil
Rights Act The ruling was yes they can.
Slide 17
Discussion of Protected Activity/Conduct Question: What if an
employee files a discrimination charge and loses? Is he or she fair
game for retaliation?
Slide 18
Protected Activity/Conduct Answer: No, retaliation law protects
employees who assert rights protected by law even when employees
turn out to be wrong about whether their rights were violated.
Slide 19
Protected Activity/Conduct Question: If an employee is engaged
in protected conduct, does that mean you cannot terminate their
employment?
Slide 20
Protected Activity/Conduct Answer: Not at all. It means that
their employers cannot fire them or take other material, adverse
action for engaging in that conduct. If there are other viable
employments issues, those can still be addressed.
Slide 21
Protected Activity/Conduct Question: How tangible does the
retaliation have to be in order to file suit?
Slide 22
Protected Activity/Conduct Answer: The U.S. Supreme Court
defined how much the employee must suffer in Burlington Northern
& Santa Fey Ry v. White an adverse action would have been
materially adverse to a reasonable employee or applicant.[A]
retaliation plaintiff (must) show that the challenged action might
well have dissuaded a reasonable worker from making or supporting a
charge of discrimination.
Slide 23
Protected Activity/Conduct Question: Can a poor job reference
on a former employee be considered retaliation?
Slide 24
Protected Activity/Conduct Answer: It is possible. Protection
from retaliation generally follows employees after they leave
employment. As a result the courts have allowed employees to
recover damages resulting from retaliatory employer
references.
Slide 25
Protected Activity/Conduct Question: What evidence is required
to prove a retaliation claim?
Slide 26
Protected Activity/Conduct Answer: The employee must prove:
They engaged in protected conduct. They suffered a tangible,
adverse employment action. There is a casual connection between
their protected conduct and the adverse action.
Slide 27
Protected Activity/Conduct Question: How important is
timing?
Slide 28
Protected Activity/Conduct Answer: Time is probably the most
important evidence of a connection between protected conduct and a
reprisal.
Slide 29
Protected Activity/Conduct Question: Is there such a thing as
retaliation by harassment?
Slide 30
Protected Activity/Conduct Answer: Yes. A campaign of
retaliatory harassment, even without a discharge or other economic
loss, can be a material adverse action if it is severe or pervasive
enough to negatively affect an employees ability to do his or her
job.
Slide 31
Strategies to Prevent Retaliation Establish a policy against
retaliation. Spell out exactly what retaliation is. Make it
perfectly clear that your organization will not tolerate
retaliation from any of your administrators, managers or employees.
Provide the steps to take if an employee feels they have been
retaliated against. Be sure employees know how to access the
policy.
Slide 32
Strategies to Prevent Retaliation Conduct Training Conduct
annual training for administrators, managers and employees. This
training should include an opportunity to have a open discussion
and Qs and As. 10 minute annual videos will most likely not
suffice. Conduct training for all new administrators, managers and
employees as soon as possible following their first day of
employment.
Slide 33
Strategies to Prevent Retaliation Communicate with the
complaining employee. Explain to the employee that you are taking
the complaint seriously. Tell the employee that you want and need
to hear about anything that happens that the employee considers
hostile or negative. Explain what retaliation is and refer them to
your policy. Tell the employee that you wont tolerate retaliation
from anyone in the company. Follow through and follow up in an
appropriate time frame.
Slide 34
Strategies to Prevent Retaliation Keep confidential any
complaints that you have. The fewer people who know about a
complaint, the smaller the chances are that someone will retaliate
against the complainer. Only talk to individuals that absolutely
need to know. When you talk with individuals explain what
retaliation is and that you will not tolerate it.
Slide 35
Strategies to Prevent Retaliation Document, Document, Document
Keep notes of everything you do to prevent retaliation. Send the
complaining employee a letter confirming what you have told them
about retaliation. Keep accurate notes of every conversation you
have regarding the complaint filed by the employee.
Slide 36
Strategies to Prevent Retaliation Final Thoughts: This is about
Cultural Expectations and Norms. One of the best prevention and
protections is creating or utilizing a business culture that is
based on open and honest relationships between Administrators,
Managers and Employees. Build relationships with your
managers.