Do not Retaliate. I repeat….Do Not Retaliate in any way, shape, or form.
And don’t allow any of your managers to retaliate. This is really important. The EEOC recently released Enforcement and Litigation Data for the fiscal year 2018. Interestingly, retaliation charges topped the list with 51.6% of all charges filed. I repeat, retaliation TOPPED the list.
Every January, I attend my local HR Association’s “legal update” and for the past few years, the labor attorneys that deliver the session have made note of the increase in retaliation claims. It’s a trend and not a good one for employers. We need to pay attention to this and educate our managers in how to respond to a complaint and what it actually means to retaliate.
According to the an EEOC article from 2015, “A manager may not fire, demote, harass or otherwise “retaliate” against an individual for filing a complaint of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, disability and genetic information also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding.”
“Fire” and “demote” are pretty clear right? “Harass or otherwise retaliate” can be a little more murky. Retaliation can come in various forms—some we wouldn’t think of immediately. Sometimes it might mean a manager neglecting to redirect other employees’ less than professional behavior toward someone who has filed a claim against another perhaps well liked employee.
Could you imagine how this might happen? There is an employee who jokes around with everyone, sometimes his jokes aren’t quite professional, but no one cares and “everyone” laughs and jokes back. Until someone does care and files a complaint. Of course during an investigation we make every effort to respect and keep confidentiality—we all know how that goes—and word gets back to the department and suddenly the complaining employee is facing a work environment where no one will speak to them, or even worse, is openly ostracized—creating an intolerable workplace. It is the employer’s responsibility to redirect this behavior.
I could come up with lots of scenarios. Maybe you could too?
Intellect over Emotion
What is important is that we make a serious effort to put our intellect over our emotion. To be the accused in an investigation has got to be an emotion fraught position to be in. And let’s face it, human nature will sometimes want to hit back—get even—show them. He said/she said conversations start—gossip—it can get ugly. Avoiding knee jerk reactions is paramount in these situations and if you have a manager who has been accused of some type of harassment or discrimination, it is very important that they understand that any type of retaliatory behavior is to be completely avoided.
If there is ever some type of investigation happening in your organization here are some things to remember:
- Do not talk about the investigation or allegations
- Pay attention to what is happening in the dealership and the department
- Do not start scrutinizing work or giving the complaining employee a hard time
- Do not make threats
- Do not treat the complaining employee differently or angrily
- Do not demote
- Do not lower hours or unfairly distribute workload
- Do NOT choose NOW to discipline (yet another reason for addressing performance when it happens, not later)—if you address it now, it will look retaliatory.
- Do not engage in gossip and do not tolerate it on your team
When we can take a breath and think rationally and like the adults we are, then perhaps we can put intellect over the emotion and significantly lower the risk for an added claim of retaliation.