What is in this article?:
- Workforce: EEOC Retaliation Charges on the Rise
- Nuances Introduce Complexity to Retaliation
Running afoul of retaliation claims can be costly. Nevertheless, companies are doing so with increasing frequency. In 2012, the Equal Employment Opportunity Commission received nearly 38,000 retaliation charge filings, making retaliation the most frequently filed charge last year.
In April the U.S. Equal Employment Opportunity Commission sued Winfield Rubber Manufacturing Co. for alleged retaliation against one of its employees. The EEOC claims that the Winfield, Ala., manufacturer fired a manager because he had terminated an accused sexual harasser.
Penalizing a manager "for doing the right thing, stopping sexual misconduct and ensuring that victims know their rights" is unjustified, said Delner Franklin-Thomas, an EEOC district director.
Moreover, it violates Title VII of the Civil Rights Act of 1964.
Also in April, a Utah construction firm paid $230,000 to settle a racial harassment and retaliation suit, and earlier in 2013, BASF paid $500,000 to settle a retaliation lawsuit brought against Cognis Corp., which BASF acquired in 2010. In that case, an employee was fired after refusing to sign a "last chance" agreement, according to the EEOC. The agreement, which was a condition for continued employment, prohibited the employee from filing discrimination charges, even for events that had yet to occur.
Running afoul of retaliation claims can be costly. Nevertheless, companies are doing so with increasing frequency. In 2012, the Equal Employment Opportunity Commission received nearly 38,000 retaliation charge filings, making retaliation the most frequently filed charge last year. Retaliation comprised 38.1% of all charges filed in 2012, up from 37.4% in the previous year.
Several factors explain the frequency of retaliation charges, not least of which is that anti-retaliation protection is a provision in every law enforced by the EEOC. As a result, a retaliation claim may be added to a sexual harassment or race discrimination charge, for example. Even more, because it is a separate charge, an employer cleared of a discrimination charge can still face a retaliation charge.
Another factor is the changing judicial landscape. Morey Raiskin, a labor and employment attorney at law firm Burr & Forman, cites a 2006 U.S. Supreme Court case, Burlington Northern & Sante Fe Railway Co. v. White, as a seminal case with respect to retaliation. It "expanded the protection employees receive after making a workplace complaint allegedly protected under Title VII," he says.
Employee-side employment lawyer Donna Ballman says the root cause of so many retaliation charges is more straightforward: "Retaliation is common in the workplace."
To combat such charges, "HR should scrutinize any write-ups and disciplines of complaining employees. If they don't make sense given the employee's history, then don't allow the supervisor to discipline the employee. Require proof other than the supervisor's word and the word of the employees closest to the supervisor," advises Ballman, author of "Stand Up For Yourself Without Getting Fired." She adds, "I can make my advice even more simple: Stop retaliating."