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Keep Your Head Above Water in the Sea of Retaliation

I told a client just last week that one of the worst things you will experience as a manager is an allegation of discrimination, after which you are forced to act like nothing has happened as you go about your normal business routine. If you don't, you risk the additional allegation that whatever steps you take (or don't take) are in retaliation for the claim of discrimination. It's the mixed message every employer hates to hear: the good news - there is a finding of no discrimination; the bad news - someone did retaliate. The consequences for retaliation are just as dire as the consequences for discrimination.

According to the EEOC's published statistics, in 2012, 38.1% of claimants alleged retaliation, while 33.7% alleged race discrimination. Compare those statistics to those from ten years prior, in 2002, when 27.0% of claimants alleged retaliation and 35.4% of claimants alleged race discrimination. The reason for the increase in workplace retaliation claims is simple; it is easy to add allegations of retaliation to a claim of discrimination because virtually any behavior that occurs after an allegation of discrimination can appear retaliatory. However, there are steps you can take both before and after the charge of discrimination comes in that can help insulate your workplace (and you) from claims of retaliation. 

Before the Allegations 

  • Educate your managers. Make sure they understand the concepts of discrimination and retaliation, and how they can avoid both. 
  • Make sure employees are receiving prompt, accurate feedback on performance issues. Managers must understand the company's performance management process, and be willing to provide direct and honest feedback. 
  • Train your managers on documenting performance, both good and bad, in an objective, fact-based narrative. If litigation does occur, you have this contemporaneous documentation to support your position. 

After the Allegations

  • Investigate the allegations promptly, thoroughly and independently. 
  • After the investigation concludes, if there are changes that need to be made in the workplace, make the changes quickly. Normalize the working relationships as soon as possible. Do not let the tension in the workplace that often occurs after allegations of discrimination and retaliation fester. 

What Are Your Education and Investigation Options? 
Some companies use internal resources if they have the expertise and bandwidth. Another option is an external resource, like EPS. EPS consultants work with employers to prevent and correct employment claims while enhancing employee relations. We accomplish our objective through training so as to better avoid allegations, investigating allegations of discrimination and retaliations when they do arise, as well as providing general consulting on human resources matters. Whatever resource you select, make sure your workplace is prepared to proactively manage any potential claims of discrimination or retaliation..