Posted on Aug 2, 2017

Whether a claim is unfounded or not isn’t apparent until it’s investigated, of course. But if statistics from the Equal Employment Opportunity Commission (EEOC) provide any insight, it’s worth noting that retaliation claims — the most common form of complaint — rose by 6% last year.

These claims involve allegations that employers took adverse action against employees who filed discrimination complaints. When an employer is found to have retaliated against a worker who files a complaint, that employer is culpable, even if the original discrimination charge proves to be invalid.

Only about one-third of retaliation charges addressed last year were determined to have had a “reasonable cause,” a fact which hasn’t changed much since the year 2000. Fighting such claims is time-consuming and disruptive, but generally necessary to avoid being stigmatized as a “bad” employer, not to mention to avoid incurring expensive penalties.

Going to the Mat

A recent federal case illustrates how far an employer might have to go to defeat an unfounded discrimination claim. A U.S. citizen of Arabic descent was given a low performance rating, and complained to the HR department that a supervisor had made a racially offensive remark. The employee was placed on a performance improvement plan, and claimed that the plan was in retaliation for his complaint about that remark.

He was transferred to another department, and two months later received another poor performance review. In keeping with company policy, the employee’s performance was later evaluated by a committee, which ultimately upheld the new supervisor’s negative review. The employee was terminated shortly thereafter.

The EEOC concurred with the employee’s retaliation claim, but the employer appealed the case to a U.S. District Court for the Southern District of Texas, which rebuffed the EEOC. The EEOC then sought help from the 5th Circuit Court of Appeals, which upheld the District Court’s ruling, seven years after the employee made his first retaliation complaint.

Lessons Learned

Needless to say, few employers have the legal budget or the appetite to stick to their guns fighting such a case all the way up to a federal appellate court. But the actions that the employer took ultimately brought vindication, and now offer important lessons to others. Here’s a quick summary of what happened in this case, which reveals why the employer may have prevailed.

  • The negative review didn’t happen until about 10 months after the employee had joined the company, suggesting that he was given plenty of time to prove himself.
  • The employer took the worker’s original discrimination complaint seriously, and transferred him to another department. The purpose of the transfer wasn’t to concede any wrongdoing on the original supervisor’s actions, but to give the worker an opportunity for a fresh start.
  • After the second supervisor gave the employee a negative review, a committee was formed to assess that review.

By taking all these measures, it was abundantly clear that the employer proceeded with intention and hadn’t acted rashly. But knowing when to “go to the mat” to defend your company against an unfounded claim isn’t always so clear.

Tips from the EEOC

Here’s what the EEOC says when it comes to developing a strategy for your company, which may help you nip employment discrimination claims in the bud.

General policies should:

  • Train human resources managers and all employees on Equal Employment Opportunity (EEO) laws.
  • Implement a strong policy based on EEO laws that’s embraced from the top levels of the organization.
  • Train managers, supervisors and employees on the policy’s contents, then enforce it and hold them accountable.
  • Promote an inclusive culture in the workplace by fostering an environment of professionalism and respect for personal differences.
  • Encourage open communication and early dispute resolution, which may minimize the chance of misunderstandings escalating into legally actionable EEO problems. An alternative dispute-resolution (ADR) program can help resolve EEO problems without the acrimony associated with an adversarial process.
  • Establish neutral and objective criteria to avoid subjective employment decisions based on personal stereotypes or hidden biases.

When it comes to recruiting, hiring and promoting employees, keep these principles in mind. It’s important to:

  • Implement EEO practices designed to widen and diversify the pool of candidates considered for employment openings, including positions in upper-level management.
  • Monitor for EEO compliance by conducting self-analyses to determine whether current employment practices disadvantage people of different races or treat them differently.
  • Analyze the duties, functions and competencies relevant to jobs. Then create objective, job-related qualification standards related to those duties, functions, and competencies and consistently apply them when choosing among candidates.
  • Ensure that selection criteria, such as education requirements, don’t disproportionately exclude certain racial groups. The exception might be if the criteria are valid predictors of successful job performance and meet the employer’s business needs.
  • Make promotion criteria available for employees to read, and also make sure job openings are communicated to all eligible employees.
  • Instruct outside agencies that you may use for recruitment not to search for candidates based on race or color. Both the employer that made the request and the employment agency that honored it would be liable.

Adopt a Policy

And finally, to minimize the chances of facing any harassment charges, adopt a strong anti-harassment policy, periodically train each employee on its contents, and vigorously follow and enforce it. The policy should include:

  • A clear explanation of prohibited conduct, with examples;
  • A detailed complaint process that provides multiple, accessible avenues of complaint, and a prompt, thorough, impartial investigation;
  • Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible, and protect employees from retaliation;
  • A reasonable expectation that the employer will take immediate and appropriate corrective action if it’s determined that harassment has occurred.

The above may appear to be a daunting “to do” list, particularly if you haven’t yet given much thought to avoiding discrimination in your workplace. But every long journey begins with a single step, and the sooner you take that step, the lower the probability that you’ll wind up with a figurative knock on the door from the EEOC.