Does your organization have a policy in place to prevent retaliation? How about one to handle whistle-blowing and other complaints? If it doesn’t, now’s a good time to create one because the Equal Employment Opportunity Commission (EEOC) has just released proposed revisions to its retaliation guidelines, which could make addressing this issue a little more challenging for HR and employers.
What’s a whistle-blower?
A whistle-blower is an employee who informs on a person or organization engaged in illicit activity. While the phrase is often associated with those who report ethical, financial, or other wrong-doing, we often think of those who assert their rights or the rights of others as whistle-blowers. Employees who make internal or external reports of harassment, discrimination, or violations of the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) -- among others -- are entitled to legal protection from unlawful retaliation, including termination and other adverse employment actions. Additionally, employees who aid in the investigation of such reports are also, generally, protected from retaliation. Many state laws also offer similar protections. Whether you call them whistle-blowers, complainants or anything else, the EEOC is keeping a close eye on how employers treat employees following reports of workplace malfeasance.
Proposed guidance from the EEOC
Recently, the EEOC updated its guidelines on retaliation.
The article EEOC’s Proposed (Anti) Retaliation Guidance: Is Your Whistleblower Response System Ready? explains that “the guidance covers a wide range of retaliation-related topics, including a definition of retaliation, examples of protected activity, types of adverse actions, legal remedies and consequences, and the ADA’s interference provision.
Currently, an employee claiming retaliation must demonstrate the following:
- He or she engaged in a protected activity (such as reporting harassment);
- He or she experienced an adverse employment action (such as being terminated or demoted, or a denial of benefits); and
- His or her protected activity caused the adverse employment action.
Pay close attention to the third bullet point because the new guideline that may be most problematic for employers facing an EEOC retaliation charge is that the EEOC has expanded its view of the evidence or facts that an employee needs to produce to establish a retaliation claim.
This new expansion will make it easier for employees to use speculative claims not backed up by facts, and will make it more difficult for employers to defend themselves from an EEOC retaliation charge or investigation. It will also affect an employer’s ability to rightfully discipline or terminate employees without increasing its exposure to retaliation charges.
The National Law Review lists the “proactive steps all employers can take to educate their workforce and bolster their discipline and discharge decisions. These include, but are not limited to:
- Establishing and maintaining a plainly written anti-retaliation policy, including practical, relatable examples of what to do and what not to do when disciplining or terminating employees.
- Providing all employees with training that includes real-life examples of actions that may constitute retaliation, but which managers and nonmanagers alike may not recognize as retaliation.
- Enacting an informal reporting and resolution mechanism for employees to use when they have concerns about retaliation in the workplace.
- Making efforts to encourage and maintain an expectation of top-down workplace civility, which may prevent or mitigate retaliatory behavior.
- Documenting thoroughly the basis for any discipline or discharge decisions that need to be taken against an employee who has complained.”
In the SHRM Online article EEOC Cracks Down on Retaliation, Jay Hux, an attorney with Fisher & Phillips in Chicago, says that “In defending itself from any number of types of retaliation claims, it’s particularly important for an organization to be able to show consistent enforcement of rules and for any discipline to be well-documented” and that “there’s no shortcut for administering policies in a correct way.”
What are the best ways to establish effective whistle-blower policies and training in your organization?
Please join @shrmnextchat at 3 p.m. ET on March 2 for #Nextchat with employment attorney and former HR practitioner Alice Kilborn (@alicekilborn). We’ll chat about the EEOC’s new proposed guidelines and how employers and HR can establish the policies and procedures needed to protect themselves and their employees from retaliation claims.
Q1. Should organizations have anti-retaliation policies? Why?
Q2. What information should be included in an anti-retaliation policy?
Q3. What are some examples of retaliation, including examples that employees may not recognize?
Q4. What are the best ways to prevent retaliation?
Q5. What are the main components of a comprehensive anti-retaliation training program?
Q6. What are the major impediments to the reporting of workplace problems?
Q7. What are some best practices for implementing a reporting system for employees with concerns about workplace retaliation?
Q8. Why is performance management documentation so important in light of the EEOC’s new guidance on retaliation?
Q9. What advice do you have for HR professionals as they handle retaliation complaints and investigations?
If you missed this chat, please click here to read the RECAP post.