I was recently reviewing the Department of Fair Employment and Housing’s Annual Report (don’t you wish you were me?), and saw that the DFEH received 17,632 complaints of employment discrimination in 2014. Of those, 12,344 (70%) alleged retaliation. Why is retaliation such a popular claim?
Some of it involves the way people perceive their interactions. An employee who has complained about discrimination will likely be vigilant in watching for some sort of adverse treatment. Any perceived slight, real or imagined, can give rise to a retaliation complaint. On the other side of the coin, someone who has been accused of discrimination or harassment may greatly resent having their professionalism and integrity attacked and find it very difficult to treat the accuser as if nothing happened.
So what can employers do?
- Make sure your policies on discrimination and harassment specifically prohibit retaliation.
- Make it easy for employees to raise concerns in the first place. This requires identifying multiple individuals that workers can turn to if they believe they’re a victim. The sooner an employee raises an issue, the easier it is to resolve.
- If an employee raises an issue, make sure that the complaining employee and the accused understand the policy against retaliation and when and how to report concerns. The accused may well want to avoid the accuser completely, but that can give rise to a claim, too. Encourage the accused to seek guidance from HR if he or she has questions about workplace interactions going forward.
- Avoid any changes in the complaining party’s duties, compensation, benefits, title, or anything else that can be characterized as an adverse action, especially during the period right after the employee complains.
- Monitor the situation closely. Have a senior manager periodically follow up with the complaining party. This is not passing the person in the hall and asking “How’s it going?” This is private, closed-door conversation in which the complaining party is encouraged to discuss any ongoing concerns, with periodic follow-up.
- Document. Document. Document.
As long as there are complaints of workplace discrimination and harassment, there will be complaints of retaliation. But these steps can help to minimize the risk.