It is imperative for employers to be aware of the law on unlawful retaliation and its implications on their business practices and workplace. Title VII of the Civil Rights Act of 1964 declares it unlawful for an employer to discriminate against an employee because he/she opposed any unlawful employment practice or made any charge, testified or participated in an investigation of an unlawful practice. Moreover, such unlawful conduct need not require evidence of wrongdoing. An employer can be responsible for retaliation and accused of wrongdoing even if there was no discrimination, sexual harassment or other unlawful conduct. It is important that employers understand that it is never too late to implement change in their workplace. There is no time like the present to institute new practices or reorganize the way certain things are done.
In the past few years, employees have been protected under this unlawful retaliation law and it has been applied to the following situations:
- Where an employee has complained about their employer’s treatment towards another individual under a different federal statute (Cracker Barrel case)
- In an employer’s internal investigation, where an employee raised an issue when being asked questions by the investigator (Crawford case)
The types of claims that are brought under this law vary significantly. Therefore, it is vital that employers familiarize themselves with the suggested practices to be put in place at their workplace and the potential consequences of their failure to do so. Further, these practices are there to encourage employers to exercise heightened vigilance and promote a healthier and more productive work environment. The reality is that many employers are not mindful of the consequences that such a failure can have. It is helpful to understand what the most common mistakes are so that you, as an employer, can be aware and implement practices to avoid them.
Overall, employers should be documenting performance issues at the time that they arise. This facilitates a more efficient and prompt process for addressing the issue with the employee who raised it. This can be done in the form of reviews or other mechanisms that the employer feels are best to address a specific concern. Often times, employers are not aware of the resources that are available to them which include the Equal Employment Opportunity Commission. Such resources should be consulted if employers are uncertain about the protocol for a specific situation or even just to ensure that they are in compliance with employment laws.
At the bare minimum, employers must make sure that they have a policy implemented that prohibits unlawful retaliation (a non-retaliation policy). They should also consider engaging in and providing training on what that policy means and how it should apply in their workplace. “Claim-specific training and counseling” is a great way to do just that. Ironically, to reduce exposure, employers really just need to exercise common sense. For example, employers must never forget that “relying on instinct is not a good method for ensuring compliance” or that “ignorance of the law is no defense, it compounds liability”. Do not ignore or isolate complaints. Do not rule out some restructuring and reorganization that may be required. Pay close attention to subsequent employment actions. Think before you act and make sure a given action that you wish to take is not related to any complaint filed.
Even though this is all extremely simple and easy to employ in your workplace employers consistently make mistakes. Some of the most common mistakes that may expose the employer to liability or having a grievance filed against them include:
- Failure to train managers on compliance with the basic requirements of employment laws
- Failure to file a timely first party report of injury or illness of an employee
- Basic documentation disasters (ex. no documentation showing the basis for an employee’s termination, padded performance reviews, mean-spirited memos, sloppy documentation that is imprecise, etc.)
- Failure to follow your companies policies without good reason
- Failure to investigate and conclusively confirm the factual basis for a termination
So what does this mean moving forward? Employers really need to ensure that the practices they implement in their workplace comply with the law and that they represent the positive values and moral integrity of the employer. Yes, it is that simple. Be careful and ensure that you develop your workplace based on the principles compassion and calmness and the desire to foster the commitment to the company’s core philosophy and values.