The EEOC charge against employers for misusing credit reports and criminal conviction searches in making employment decisions is becoming more and more frequent. I thought these types of EEOC actions against employers in this area would have been the most frequent. Recently I learned that retaliation charges against employers are the most frequent. For the fiscal year 2013, retaliation charges were 41% of the 93,838 EEOC charges nationwide.
According to a post by Daniel A. Kaplan, retaliation charges are so popular because employees who bring retaliation charges have a higher degree of success than those that bring a regular discrimination charge. Daniel A. Kaplan points out that there is a lower standard of harm that must be proven for a successful retaliation lawsuit thanks to the U.S. Supreme Court case, Burlington Northern & Santa Fe Railroad v. White (2006). Even though a discrimination plaintiff has to prove that he or she suffered a “materially adverse employment action,” a retaliation plaintiff only needs show that the employer undertook some conduct that may dissuade him or her from making or supporting a charge. Second, juries inherently distrust employers; retaliation (versus discrimination) “makes sense.”
What is the most frequent cause of a retaliation charge? According to Mary M. Tiernan, Program Analyst with the Philadelphia District Office of EEOC, it is when a new supervisor moves into a new role in a unit. A new supervisor may make personnel changes and job function changes in their new area of responsibility. Many times, employees interpret the decisions of a new supervisor as a type of retaliation against them. Knowing this situation has a high likelihood of occurring, an employer can take special precautions to assure that the new supervisor is prepared and acts accordingly.
The company should have a retaliation policy that has been clearly communicated to the employees and managers. The communication should be in writing and its receipt by the employee documented. Investigate retaliation charges promptly. Implement remedial actions quickly. Train managers to increase their awareness of the potential ramifications of their decisions in their new role. Train Human Resources staff and have a designated internal subject matter expert in this area.