Until several years ago, in order to prevail on a claim of sexual harassment under Title VII, plaintiffs in the Fourth Circuit Court of Appeals' jurisdiction (including North and South Carolina) had to demonstrate that the alleged hostile environment consisted of acts directed at them because of their gender.
Recently, the Fourth Circuit changed this view, allowing sexual harassment claims to proceed to trial where the plaintiff was exposed to a culture of sexual and denigrating behavior towards women in the workplace, even if that conduct was not directed at her personally. Last month, the court further extended this principal, finding a hostile work environment based largely on sexist and demeaning attitudes and opinions toward women expressed by co-workers.
In Mosby-Grant v. City of Hagerstown, the plaintiff was a police academy cadet, who contended that her failure to graduate was caused by the behavior of her fellow recruits. She alleged a wide range of complaints, most of which involved explicit and derogatory references to women in general. Cadets and instructors used the word "bitch" to refer to women, and male recruits complained about domestic violence training. The plaintiff alleged that she was subjected to scorn and ridicule by her co-workers based on her gender.
In a 2-1 decision, the Fourth Circuit concluded that the plaintiff's allegations were sufficient to state a claim of hostile environment harassment under Title VII. The court concluded that the cumulative effect of comments demeaning to women is equivalent to an environment where women are subject to unwanted sexual advances.
ParkerPoe, EmployNews,Issue 602, January 14, 2011
Thursday, February 24, 2011
NLRB Prohibits Pre-Emptive Strike Against Concerted Activity
The National Labor Relations Act protects the rights of employees to engage in concerted activity, such as collective discussion of wages or other terms and conditions of employment with their employers. Last month, the National Labor Relations Board extended the Act's coverage to preliminary activities by employees that do not yet constitute concerted activity.
In Parexel International, LLC, a terminated employee alleged that he was fired after preliminary discussions with other employees regarding wages and wage discrimination. The employer allegedly caught wind of these discussions before the employee raised them with the employer. The administrative law judge who heard the matter concluded that the employee had not yet engaged in any concerted activity with regard to these wage issues, and therefore could not contend that his termination violated the NLRA.
The Board reversed this decision, concluding that the underlying policies behind the Act mandate that employee discussions that could lead to concerted activity are also legally protected behavior. Employers cannot conduct pre-emptive strikes to prevent concerted activity at early stages before employees gain clear statutory protection against retaliation.
When combined with last week's Facebook settlement, this decision demonstrates the NLRB's shift to strong protections of employee rights to criticize employers and the terms and conditions of their employment, regardless of the forum used, and regardless of the stage in which this criticism arises.
Employers should exercise caution before disciplining or discharging any employee who could be considered to have raised questions regarding their employment conditions on behalf of themselves and other employees.
ParkerPoe, EmployNews, Issue 607, February 18, 2011
In Parexel International, LLC, a terminated employee alleged that he was fired after preliminary discussions with other employees regarding wages and wage discrimination. The employer allegedly caught wind of these discussions before the employee raised them with the employer. The administrative law judge who heard the matter concluded that the employee had not yet engaged in any concerted activity with regard to these wage issues, and therefore could not contend that his termination violated the NLRA.
The Board reversed this decision, concluding that the underlying policies behind the Act mandate that employee discussions that could lead to concerted activity are also legally protected behavior. Employers cannot conduct pre-emptive strikes to prevent concerted activity at early stages before employees gain clear statutory protection against retaliation.
When combined with last week's Facebook settlement, this decision demonstrates the NLRB's shift to strong protections of employee rights to criticize employers and the terms and conditions of their employment, regardless of the forum used, and regardless of the stage in which this criticism arises.
Employers should exercise caution before disciplining or discharging any employee who could be considered to have raised questions regarding their employment conditions on behalf of themselves and other employees.
ParkerPoe, EmployNews, Issue 607, February 18, 2011
NLRB Settles Facebook Case
On Monday, the National Labor Relations Board announced settlement of a landmark case dealing with employees' ability to criticize and complain about their employers on Facebook and other social networking sites. The case involved an employee of a Connecticut ambulance service who complained about her supervisor on her Facebook page, and engaged in an on-line discussion with co-workers about the supervisor's behavior.
The employer fired the employee, claiming violation of the social networking policy contained in its employee handbook. The employee filed an administrative complaint with the NLRB, contending that the National Labor Relations Act protects her ability to criticize the employer and to engage in discussions with other employees regarding work issues.
The NLRB contended that these legal protections extend to employees' use of social networking sites, even where these sites can be accessed by the general public. The employer claimed that the employee's conduct in this case was not protected, because her postings were intended to hold the supervisor up to ridicule rather than engaging in a discussion over working conditions.
In the settlement, the employer agreed to revise its social networking policy to make clear that it does not prohibit legitimate discussion or criticism of terms and conditions of employment.
This settlement preserves the employer's right to take appropriate disciplinary action in the event that employees engage in taunting, ridicule, harassment, or conduct that goes beyond complaints about work, even if their conduct contains elements of such complaints.
The NLRB and federal courts are likely to struggle with the exact line between legitimate criticism of working conditions and inappropriate or insulting behavior.
Employers should review their social networking policies to make sure they cannot be construed to prohibit any discussion among employees of work or working conditions.
ParkerPoe, EmployNews, Issue 606, February 11, 2011
The employer fired the employee, claiming violation of the social networking policy contained in its employee handbook. The employee filed an administrative complaint with the NLRB, contending that the National Labor Relations Act protects her ability to criticize the employer and to engage in discussions with other employees regarding work issues.
The NLRB contended that these legal protections extend to employees' use of social networking sites, even where these sites can be accessed by the general public. The employer claimed that the employee's conduct in this case was not protected, because her postings were intended to hold the supervisor up to ridicule rather than engaging in a discussion over working conditions.
In the settlement, the employer agreed to revise its social networking policy to make clear that it does not prohibit legitimate discussion or criticism of terms and conditions of employment.
This settlement preserves the employer's right to take appropriate disciplinary action in the event that employees engage in taunting, ridicule, harassment, or conduct that goes beyond complaints about work, even if their conduct contains elements of such complaints.
The NLRB and federal courts are likely to struggle with the exact line between legitimate criticism of working conditions and inappropriate or insulting behavior.
Employers should review their social networking policies to make sure they cannot be construed to prohibit any discussion among employees of work or working conditions.
ParkerPoe, EmployNews, Issue 606, February 11, 2011
Friday, January 28, 2011
Supreme Court Allows Title VII Retaliation Suit by Fiancée of Employee Who Filed EEOC Charge
In recent years, the U.S. Supreme Court has broadly read anti-retaliation provisions of federal labor laws, rejecting technical challenges based on interpretations of such statutes.
On Monday, the Court unanimously continued this trend, allowing a Title VII retaliation suit by the fiancée of an employee who filed an EEOC Charge against their common employer.
In Thompson v. North American Stainless, LP, the plaintiff's fiancée filed an EEOC Charge alleging sex discrimination. Three weeks later, the company terminated the plaintiff. He filed his own EEOC Charge, alleging that he was terminated in an attempt by the employer to retaliate against his fiancée.
The employer contended that under Title VII's anti-retaliation provision, the plaintiff had no standing to sue because he had not engaged in any protected activity under Title VII.
The Supreme Court disagreed, reversing the contrary decision of the Sixth Circuit Court of Appeals, and remanding the matter for possible trial. In its decision, the Court noted Congress' intent to apply Title VII's anti-retaliation provisions to a wide range of employer conduct.
Clearly, the plaintiff's fiancée was entitled to file her own retaliation complaint based on the termination. The Supreme Court refused to draw a line as to whether termination or negative action against any co-worker with whom the complaining employee has a relationship would constitute retaliation under Title VII. Each case must be individually reviewed.
In terms of the fiancée's independent right to file a Charge, the Court concluded that any aggrieved employee who falls within a "zone of interests" protected under Title VII may file a retaliation complaint. A fiancée of a complaining party is closely related enough to provide independent protection under the statute.
This reasoning may not apply to any co-worker who is a friend of the complaining party. This decision will surely trigger additional litigation by tangentially related employees who claim that some relationship with a co-worker who complained about discrimination motivated the employer to retaliate against them.
Employers seeking to discipline or terminate employees known to have a personal connection to a complaining party should make certain they can demonstrate legitimate business reasons unrelated to the Charge before taking such action.
EmployNews, ParkerPoe, Issue 604, January 28, 2011
The Whitford Group
TheWhitfordGroup@aol.com
704 298-2115
Interesting that I keep using the word "retaliation" when speaking with clients and the word keeps popping up in the news. As I have stated in the past, retaliation is extremely serious and all measures should be taken to prevent it. The above reference case is based on a U.S. Supreme Court decision, certainly not to be taken lightly.
On Monday, the Court unanimously continued this trend, allowing a Title VII retaliation suit by the fiancée of an employee who filed an EEOC Charge against their common employer.
In Thompson v. North American Stainless, LP, the plaintiff's fiancée filed an EEOC Charge alleging sex discrimination. Three weeks later, the company terminated the plaintiff. He filed his own EEOC Charge, alleging that he was terminated in an attempt by the employer to retaliate against his fiancée.
The employer contended that under Title VII's anti-retaliation provision, the plaintiff had no standing to sue because he had not engaged in any protected activity under Title VII.
The Supreme Court disagreed, reversing the contrary decision of the Sixth Circuit Court of Appeals, and remanding the matter for possible trial. In its decision, the Court noted Congress' intent to apply Title VII's anti-retaliation provisions to a wide range of employer conduct.
Clearly, the plaintiff's fiancée was entitled to file her own retaliation complaint based on the termination. The Supreme Court refused to draw a line as to whether termination or negative action against any co-worker with whom the complaining employee has a relationship would constitute retaliation under Title VII. Each case must be individually reviewed.
In terms of the fiancée's independent right to file a Charge, the Court concluded that any aggrieved employee who falls within a "zone of interests" protected under Title VII may file a retaliation complaint. A fiancée of a complaining party is closely related enough to provide independent protection under the statute.
This reasoning may not apply to any co-worker who is a friend of the complaining party. This decision will surely trigger additional litigation by tangentially related employees who claim that some relationship with a co-worker who complained about discrimination motivated the employer to retaliate against them.
Employers seeking to discipline or terminate employees known to have a personal connection to a complaining party should make certain they can demonstrate legitimate business reasons unrelated to the Charge before taking such action.
EmployNews, ParkerPoe, Issue 604, January 28, 2011
The Whitford Group
TheWhitfordGroup@aol.com
704 298-2115
Interesting that I keep using the word "retaliation" when speaking with clients and the word keeps popping up in the news. As I have stated in the past, retaliation is extremely serious and all measures should be taken to prevent it. The above reference case is based on a U.S. Supreme Court decision, certainly not to be taken lightly.
Thursday, January 27, 2011
Technical Notification Failure Dooms FMLA Defense
Employer's Failure Allows FMLA Claim To Go Forward
The Story: A newspaper receptionist, who was allegedly fired for violation of her employer's attendance policy, had a triable Family and Medical Leave Act (FMLA) claim because the employer did not effectively trigger the plaintiff's obligation to provide medical certification of her condition, a circuit court decided.
Reversing summary judgment for Gannett Satellite Information Network, owner of the Dickson Herald in Tennessee, the circuit court determined that Gannett could not rely on employee Deborah Branham's failure to provide medical certification as a justification for denying her FMLA leave and firing her.
Instead, the court found that Branham satisfied her statutory obligation to notify the employer about her need for medical leave, and that Gannett "never properly triggered her additional duty to provide a medical certification supporting her claim."
In the case, a physician, Dr. Pamela Singer, examined Branham on November 13, and the doctor wrote a "negative certification" indicating Branham's condition was "normal," and that she should be able to return work November 14. Nevertheless, Branham remained absent for most of the subsequent two weeks, due to migraine headaches, nausea, depression, and insomnia.
On November 24, Gannett fired Branham for violation of the company's attendance policy, as she was absent after the date the doctor released her to work. On that same day, however, Gannett received a faxed certification form from a nurse practitioner in Dr. Singer's practice group, stating that Branham's illness began on May 6, and was expected to last until January 1, 2007.
The lower court ruled for Gannett, holding that the employer was entitled to rely on the negative certification—which denied leave to Branham—and Gannett did not have to wait for the completion of FMLA's fifteen-day certification period when Branham never indicated she was seeking a second opinion.
However, the Sixth Circuit reversed. It noted that it didn't have to deal with the question of the negative medical certification and the 15-day waiting period because Gannett did not take the prescribed steps to trigger Branham's obligation to provide medical certification in the first place.
The court determined that "Branham has produced sufficient evidence to create a genuine issue of material fact about her entitlement to FMLA leave, and Gannett was not permitted to deny her leave based on the certification requirement when it never properly requested certification or informed her of the consequences of failing to provide the same, as required by regulations."
Even if the company representative had discussed all the appropriate information, an oral request would have been "insufficient to activate Branham's certification duty," the court said.
As my current clients know, I talk a lot about issuing FMLA paperwork when an employee has been absent from work for three consecutive days or more (day four) for the same or related illness. It’s a lot less expensive to send out the certification form, and it not be needed, than to face the issues in the above case. Although they do not state the actual damages and monetary award in this case, it reads to have been substantial.
Edited for use in this blog.
The Whitford Group
TheWhitfordGroup@aol.com
704 298-2115
The Story: A newspaper receptionist, who was allegedly fired for violation of her employer's attendance policy, had a triable Family and Medical Leave Act (FMLA) claim because the employer did not effectively trigger the plaintiff's obligation to provide medical certification of her condition, a circuit court decided.
Reversing summary judgment for Gannett Satellite Information Network, owner of the Dickson Herald in Tennessee, the circuit court determined that Gannett could not rely on employee Deborah Branham's failure to provide medical certification as a justification for denying her FMLA leave and firing her.
Instead, the court found that Branham satisfied her statutory obligation to notify the employer about her need for medical leave, and that Gannett "never properly triggered her additional duty to provide a medical certification supporting her claim."
In the case, a physician, Dr. Pamela Singer, examined Branham on November 13, and the doctor wrote a "negative certification" indicating Branham's condition was "normal," and that she should be able to return work November 14. Nevertheless, Branham remained absent for most of the subsequent two weeks, due to migraine headaches, nausea, depression, and insomnia.
On November 24, Gannett fired Branham for violation of the company's attendance policy, as she was absent after the date the doctor released her to work. On that same day, however, Gannett received a faxed certification form from a nurse practitioner in Dr. Singer's practice group, stating that Branham's illness began on May 6, and was expected to last until January 1, 2007.
The lower court ruled for Gannett, holding that the employer was entitled to rely on the negative certification—which denied leave to Branham—and Gannett did not have to wait for the completion of FMLA's fifteen-day certification period when Branham never indicated she was seeking a second opinion.
However, the Sixth Circuit reversed. It noted that it didn't have to deal with the question of the negative medical certification and the 15-day waiting period because Gannett did not take the prescribed steps to trigger Branham's obligation to provide medical certification in the first place.
The court determined that "Branham has produced sufficient evidence to create a genuine issue of material fact about her entitlement to FMLA leave, and Gannett was not permitted to deny her leave based on the certification requirement when it never properly requested certification or informed her of the consequences of failing to provide the same, as required by regulations."
Even if the company representative had discussed all the appropriate information, an oral request would have been "insufficient to activate Branham's certification duty," the court said.
As my current clients know, I talk a lot about issuing FMLA paperwork when an employee has been absent from work for three consecutive days or more (day four) for the same or related illness. It’s a lot less expensive to send out the certification form, and it not be needed, than to face the issues in the above case. Although they do not state the actual damages and monetary award in this case, it reads to have been substantial.
Edited for use in this blog.
The Whitford Group
TheWhitfordGroup@aol.com
704 298-2115
Prevent Employment Discrimination and Lawsuits
Employment Discrimination Lawsuits Are Escalating
In employment discrimination lawsuits, the business always loses. Consequently, creating a work culture and environment for employees that encourages diversity and discourages employment discrimination in any form is critical for your success. Employers need to adopt several serious guidelines for the prevention of discrimination in the workplace. Don’t wait until you are the target of an employment discrimination lawsuit before you follow a few simple steps that could have prevented years of pain.
Employment Discrimination Law Suits Rising
Let’s start by looking at the scope of the problem in employment discrimination lawsuits. U.S. Equal Employment Opportunity Commission (EEOC) statistics reveal that the highest number of employment discrimination charges in its 45 year history were filed in the fiscal year ending on September 30, 2010. The EEOC’s statistics about employment discrimination continue to demonstrate a three year trend of increased charge filing and litigation. Driven by the dismal economy, a bigger EEOC enforcement budget, and employee-friendly revisions to EEO laws, the employment discrimination lawsuit trend is expected to continue.
Key findings in the employment discrimination statistics reveal that in 2010:
•Retaliation discrimination is the most frequently cited form of employment discrimination (36,258 charges). Historically, retaliation complaints filed with the EEOC increased 44%, from 22,690 charges in 2003 to 32,690 in 2008.
•Retaliation is followed closely by race discrimination (35,890 charges).
•Employment discrimination hit new records for sex, national origin, religion, and disability discrimination charges.
•Employment disability discrimination charges increased nearly 20%, due in part, to the 2008 Americans with Disabilities Act Amendments Act (ADAAA).
•The EEOC handled its first employment discrimination charges brought under the Genetic Information Nondiscrimination Act (GINA).
•The EEOC received almost 31,000 charges alleging unlawful harassment; 11,717 were sexual harassment charges. The majority of harassment charges alleged some form of harassment, other than sexual harassment, such as race, national origin, or religious harassment.
The EEOC also reported that it secured more than $404 million in monetary benefits for individuals - the highest level of relief obtained through administrative enforcement in the Commission's history.
Rising Costs of EEOC Suits Expensive for Employers
From an employer’s perspective, settlement costs to resolve an EEOC claim fade in the face of additional, often unrecorded, costs to the employer’s organization. Atkins says that these include the costs of:
•the distraction of an organization’s staff for months as documents are gathered and prepared, an internal investigation is conducted, and time is invested in fighting the claim,
•the loss of employee morale while under the constant pressure of a lawsuit,
•the potential loss of an employer’s reputation as an employer of choice for recruiting and retaining desirable employees, whether found guilty or innocent, and
•attorneys' fees which can cost as much or more than an eventual settlement, if the employer is found guilty.
In addition to these hard-to-quantify costs, Atkins says that the average single claimant lawsuit results in defense costs of $250,000 and a jury verdict of $200,000. Other sources place the average verdict awards even higher, at nearly $900,000 in 2007, with the average settlement nearly $550,000. In any case, jury awards are expensive for employers.
Class action lawsuits, which are also increasing, generally result in lower per claimant awards but can cost an employer millions of dollars in cash and untold millions in the above employee costs listed. Also note that it only takes three employees who have the same or similar charge to constitute a class action law suit. It’s not just the giants in business, it can be anyone.
While the potential costs of employment discrimination lawsuits are high, on the plus side, employers have some recourse. Employees who feel they are experiencing employment discrimination should first use the employer’s internal complaint system. This gives the employer the opportunity to investigate the alleged employment discrimination and provide recourse through their normal complaint resolution process.
Employees who do not believe that their complaint was adequately addressed by their employer, and in situations where the harassment or discrimination behavior continues, may file a claim with the EEOC.
What Employers Can Do to Prevent Employment Discrimination
Employers who put strong measures in place to prevent and address employment discrimination, harassment, and retaliation may avoid EEOC charges and lawsuits. Further, their employment discrimination policies, preventions, and practices can work in their favor in an employment discrimination lawsuit. If the employer can demonstrate the following preventative actions, the employer may escape significant damages.
Employers are advised to prevent employment discrimination and create a workplace culture that discourages employment discrimination, harassment, and retaliation, with these actions.
•Implement and integrate a strict policy that makes employment discrimination of any type unacceptable in your workplace. The policy needs to cover employment discrimination, harassment, and retaliation. The policy should include a process for reporting any incidents of employment discrimination, harassment or retaliation to the company. Preferably employees are given several methods for reporting incidents in case their supervisor is involved in the employment discrimination matter.
The employment discrimination policy should also communicate how an employee’s complaint will be handled with an outline of steps. The employment discrimination policy should spell out disciplinary action that will be taken with offenders. The employment discrimination policy should also discuss the nature of retaliation and stress that retaliation is also a form of discrimination. Finally, the employment discrimination policy should contain an appeal process for employees who are dissatisfied with the outcome of their complaint.
•Train your managers in the implementation of the anti-discrimination policy with the expectation that prevention is their responsibility. A manager’s role is to create a work environment and culture in which employment discrimination, harassment, and retaliation do not occur. Managers must recognize signs and symptoms that discrimination, harassment, or retaliation is occurring and know how to address these illegal actions. Managers must thoroughly understand the company’s policy and know how to recognize work situations that might escalate into employment discrimination, harassment or retaliation situations.
•Establish cultural expectations and norms. Creating a work environment that is free of employment discrimination, and all forms of harassment and retaliation should be integral in employee job descriptions, the goals in the performance development planning process, and in employee review and evaluation.
•Respond to an employee complaint about employment discrimination, harassment, or retaliation in a timely, professional, confidential, policy-adhering manner. Address the employee complaint through to appeal, when necessary.
As with any employment situation that could result in litigation, document all aspects of policy training, complaint investigation, hiring and promotion practices, management development, employee preventative training.
Your good faith efforts to prevent employment discrimination, harassment, and retaliation may serve you well – increasingly important in the litigious future.
By Susan M. Heathfield, About.com Guide
Edited for use in this blog.
The Whitford Group
TheWhitfordGroup@aol.com
704 298-2115
In employment discrimination lawsuits, the business always loses. Consequently, creating a work culture and environment for employees that encourages diversity and discourages employment discrimination in any form is critical for your success. Employers need to adopt several serious guidelines for the prevention of discrimination in the workplace. Don’t wait until you are the target of an employment discrimination lawsuit before you follow a few simple steps that could have prevented years of pain.
Employment Discrimination Law Suits Rising
Let’s start by looking at the scope of the problem in employment discrimination lawsuits. U.S. Equal Employment Opportunity Commission (EEOC) statistics reveal that the highest number of employment discrimination charges in its 45 year history were filed in the fiscal year ending on September 30, 2010. The EEOC’s statistics about employment discrimination continue to demonstrate a three year trend of increased charge filing and litigation. Driven by the dismal economy, a bigger EEOC enforcement budget, and employee-friendly revisions to EEO laws, the employment discrimination lawsuit trend is expected to continue.
Key findings in the employment discrimination statistics reveal that in 2010:
•Retaliation discrimination is the most frequently cited form of employment discrimination (36,258 charges). Historically, retaliation complaints filed with the EEOC increased 44%, from 22,690 charges in 2003 to 32,690 in 2008.
•Retaliation is followed closely by race discrimination (35,890 charges).
•Employment discrimination hit new records for sex, national origin, religion, and disability discrimination charges.
•Employment disability discrimination charges increased nearly 20%, due in part, to the 2008 Americans with Disabilities Act Amendments Act (ADAAA).
•The EEOC handled its first employment discrimination charges brought under the Genetic Information Nondiscrimination Act (GINA).
•The EEOC received almost 31,000 charges alleging unlawful harassment; 11,717 were sexual harassment charges. The majority of harassment charges alleged some form of harassment, other than sexual harassment, such as race, national origin, or religious harassment.
The EEOC also reported that it secured more than $404 million in monetary benefits for individuals - the highest level of relief obtained through administrative enforcement in the Commission's history.
Rising Costs of EEOC Suits Expensive for Employers
From an employer’s perspective, settlement costs to resolve an EEOC claim fade in the face of additional, often unrecorded, costs to the employer’s organization. Atkins says that these include the costs of:
•the distraction of an organization’s staff for months as documents are gathered and prepared, an internal investigation is conducted, and time is invested in fighting the claim,
•the loss of employee morale while under the constant pressure of a lawsuit,
•the potential loss of an employer’s reputation as an employer of choice for recruiting and retaining desirable employees, whether found guilty or innocent, and
•attorneys' fees which can cost as much or more than an eventual settlement, if the employer is found guilty.
In addition to these hard-to-quantify costs, Atkins says that the average single claimant lawsuit results in defense costs of $250,000 and a jury verdict of $200,000. Other sources place the average verdict awards even higher, at nearly $900,000 in 2007, with the average settlement nearly $550,000. In any case, jury awards are expensive for employers.
Class action lawsuits, which are also increasing, generally result in lower per claimant awards but can cost an employer millions of dollars in cash and untold millions in the above employee costs listed. Also note that it only takes three employees who have the same or similar charge to constitute a class action law suit. It’s not just the giants in business, it can be anyone.
While the potential costs of employment discrimination lawsuits are high, on the plus side, employers have some recourse. Employees who feel they are experiencing employment discrimination should first use the employer’s internal complaint system. This gives the employer the opportunity to investigate the alleged employment discrimination and provide recourse through their normal complaint resolution process.
Employees who do not believe that their complaint was adequately addressed by their employer, and in situations where the harassment or discrimination behavior continues, may file a claim with the EEOC.
What Employers Can Do to Prevent Employment Discrimination
Employers who put strong measures in place to prevent and address employment discrimination, harassment, and retaliation may avoid EEOC charges and lawsuits. Further, their employment discrimination policies, preventions, and practices can work in their favor in an employment discrimination lawsuit. If the employer can demonstrate the following preventative actions, the employer may escape significant damages.
Employers are advised to prevent employment discrimination and create a workplace culture that discourages employment discrimination, harassment, and retaliation, with these actions.
•Implement and integrate a strict policy that makes employment discrimination of any type unacceptable in your workplace. The policy needs to cover employment discrimination, harassment, and retaliation. The policy should include a process for reporting any incidents of employment discrimination, harassment or retaliation to the company. Preferably employees are given several methods for reporting incidents in case their supervisor is involved in the employment discrimination matter.
The employment discrimination policy should also communicate how an employee’s complaint will be handled with an outline of steps. The employment discrimination policy should spell out disciplinary action that will be taken with offenders. The employment discrimination policy should also discuss the nature of retaliation and stress that retaliation is also a form of discrimination. Finally, the employment discrimination policy should contain an appeal process for employees who are dissatisfied with the outcome of their complaint.
•Train your managers in the implementation of the anti-discrimination policy with the expectation that prevention is their responsibility. A manager’s role is to create a work environment and culture in which employment discrimination, harassment, and retaliation do not occur. Managers must recognize signs and symptoms that discrimination, harassment, or retaliation is occurring and know how to address these illegal actions. Managers must thoroughly understand the company’s policy and know how to recognize work situations that might escalate into employment discrimination, harassment or retaliation situations.
•Establish cultural expectations and norms. Creating a work environment that is free of employment discrimination, and all forms of harassment and retaliation should be integral in employee job descriptions, the goals in the performance development planning process, and in employee review and evaluation.
•Respond to an employee complaint about employment discrimination, harassment, or retaliation in a timely, professional, confidential, policy-adhering manner. Address the employee complaint through to appeal, when necessary.
As with any employment situation that could result in litigation, document all aspects of policy training, complaint investigation, hiring and promotion practices, management development, employee preventative training.
Your good faith efforts to prevent employment discrimination, harassment, and retaliation may serve you well – increasingly important in the litigious future.
By Susan M. Heathfield, About.com Guide
Edited for use in this blog.
The Whitford Group
TheWhitfordGroup@aol.com
704 298-2115
Retaliation is Illegal
Retaliation Definition:
Retaliation is revenge or reprisal. Retaliation means to get even, or to take revenge. But, retaliation in employment and the world of Human Resources has a much more specific meaning and connotation. In connection with charges of discrimination, retaliation is a serious issue for employers.
For employers, note that all of the laws that the U.S. Equal Employment Opportunity Commission (EEOC) enforces make it illegal to fire, demote, harass, or otherwise retaliate against either job applicants or employees for these reasons. The employee or applicant:
•filed a charge of discrimination,
•complained to their employer or other covered entity about discrimination on the job, or
•participated in an employment discrimination proceeding, such as an investigation or a lawsuit.
The law forbids retaliation when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, transfers or lateral moves, layoffs, training, benefits, and any other terms or conditions of employment.
An employee or applicant is protected by law from retaliation whether his or her charges are proven true or false. This is to preserve and protect their rights, and to encourage employees or applicants who experience discrimination or retaliation to come forward and report it.
Retaliation can be stealthy and difficult to witness and document. This makes the obligation of the employer to regularly follow up with any applicant or employee who might face retaliation as a result of the reasons stated above, critical. The employer would be smart to document the regular follow-up and any charges of retaliation that are reported or witnessed as a result.
Employers must investigate a charge of retaliation, and even a rumor of retaliation, and document the investigation, its findings, and any disciplinary action that resulted. Following the investigation, the employer still has the obligation to continue to follow up to ensure that retaliation is not occurring.
A charge of retaliation, in the eyes of the courts and regulatory agencies, is worse than the reason the charge or complaint was filed in the first place.
By Susan M. Heathfield, About.com Guide
Edited for use in this blog.
The Whitford Group
TheWhitfordGroup@aol.com
704 298-2115
Retaliation is revenge or reprisal. Retaliation means to get even, or to take revenge. But, retaliation in employment and the world of Human Resources has a much more specific meaning and connotation. In connection with charges of discrimination, retaliation is a serious issue for employers.
For employers, note that all of the laws that the U.S. Equal Employment Opportunity Commission (EEOC) enforces make it illegal to fire, demote, harass, or otherwise retaliate against either job applicants or employees for these reasons. The employee or applicant:
•filed a charge of discrimination,
•complained to their employer or other covered entity about discrimination on the job, or
•participated in an employment discrimination proceeding, such as an investigation or a lawsuit.
The law forbids retaliation when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, transfers or lateral moves, layoffs, training, benefits, and any other terms or conditions of employment.
An employee or applicant is protected by law from retaliation whether his or her charges are proven true or false. This is to preserve and protect their rights, and to encourage employees or applicants who experience discrimination or retaliation to come forward and report it.
Retaliation can be stealthy and difficult to witness and document. This makes the obligation of the employer to regularly follow up with any applicant or employee who might face retaliation as a result of the reasons stated above, critical. The employer would be smart to document the regular follow-up and any charges of retaliation that are reported or witnessed as a result.
Employers must investigate a charge of retaliation, and even a rumor of retaliation, and document the investigation, its findings, and any disciplinary action that resulted. Following the investigation, the employer still has the obligation to continue to follow up to ensure that retaliation is not occurring.
A charge of retaliation, in the eyes of the courts and regulatory agencies, is worse than the reason the charge or complaint was filed in the first place.
By Susan M. Heathfield, About.com Guide
Edited for use in this blog.
The Whitford Group
TheWhitfordGroup@aol.com
704 298-2115
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