2016 marked the second year in a row that the number of employee discrimination complaints filed with Equal Employment Opportunity Commission (EEOC) increased.
In 2016 alone, the EEOC received 91,503 charges of workplace discrimination. The basis for these complaints in descending order were:
- Retaliation: 45.9%
- Race: 35.3%
- Disability: 30.7%
- Sex: 29.4%
- Age: 22.8%
- National Origin: 10.8%
- Religion: 4.2%
- Color: 3.4%
- Equal Pay Act: 1.2%
- Genetic Information Non-Discrimination Act: .3%
With the number of employees filing discrimination complaints with the EEOC on the rise, it is more important than ever for employers to know how to defend themselves against a false employee discrimination claim.
There are many steps employers can take to reduce the risk of discrimination, harassment and retaliation claims, such as reviewing and revising their current anti-discrimination, harassment, non-retaliation policies and complaint procedures.
From a risk management perspective, employers should attempt to avoid situations where an employee is dissatisfied with the employer’s response to his or her complaint.
If the employer determines that an employee’s allegations are false, takes no action against the alleged offender or decides that the conduct occurred but does not warrant serious discipline, the complaining employee may be prompted into filing a charge of discrimination with the EEOC or another administrative agency.
Consequently, employers should be prepared to defend themselves by showing evidence of prompt and effective remedial action.
Some employers may determine that the best way to prevent this consequence is to terminate the alleged harasser or otherwise to treat the offense as extremely serious, thereby offering evidence that it has complied with the law.
Many employers have “zero tolerance” policies with regards to sexual harassment, which is a policy prohibiting sexual harassment in the workplace and allowing an employer to terminate or otherwise discipline an employee for harassing conduct that fails to rise to the level of actionable sexual harassment.
These “zero tolerance” policies may provide that a harasser be disciplined or terminated for one indiscretion. However, the law is unsettled as to when one incidence of harassing conduct is sufficiently “severe and pervasive” enough to create liability.
When an employee makes a claim of discrimination, harassment or other unlawful conduct, managers, supervisors and, if appropriate, co-workers who work with the claimant should be counseled concerning their non-retaliation obligations. Employers should also ensure that this counseling is documented.
Employers should be proactive and engaged with employees who have complained of unlawful conduct in the workplace. The employee should be provided with a copy of the company anti-retaliation policy and procedure which the employer should ensure is adequately explained to the claimant.
Of course, this discussion should be documented, and employers should subsequently follow up with the employee to ensure that there has been no retaliation or further incidents.
In some situations employers may want to consider restructuring the work environment so that the aggrieved employee may report to a different supervisor. Further, changing employee performance evaluators, or implementing an alternative work schedule so as to reduce or eliminate the risk of retaliation may be helpful as well.
Having the employee “sign-off” on the changes to document their agreement can help to eliminate or reduce the risk that the employee will later claim that the workplace restructuring itself was an act of retaliation.
Employers should also keep track of subsequent employment actions affecting a claimant, which should be reviewed before implemented. Human resources, legal counsel or any other appropriate management personnel should review any proposed employment actions affecting the claimant employee to make sure that no unlawful retaliation is occurring.
Most employers usually investigate an employee’s discrimination or harassment claim internally, before the employee files a charge of discrimination with the EEOC or the state’s administrative agency equivalent.
Investigating discrimination and harassment claims early on not only helps employers minimize the effects of discrimination or harassment on the complaining employees, but also helps resolve these claims prior to the initiation of administrative proceedings and/or costly litigation.
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The information on this website is intended as general legal information only and should not form the basis of legal advice of any kind. Individuals seeking specific legal advice should consult a lawyer.