Company retaliation is prohibited

U.S.-based companies and their employees enjoy many employment rights and freedoms that have evolved over the past 40 years of federal, state and local legislation and through legal rulings on statutory law.

New legislation and legal rulings are continuously occurring. They require employers to stay on top of the changes and ensure that they -- including all of their supervisors and managers -- are in compliance while performing and interacting in their daily roles.

Anti-discrimination laws prohibit employers from retaliating against employees who engage in activities protected by various laws. Those laws include:

• Title VII of the 1964 Civil Rights Act, the Americans with Disabilities Act (ADA).
• The Age Discrimination in Employment Act (ADEA).
• The Equal Pay Act and
• State anti-discrimination statues.

The existing prohibitions against retaliation result in broad coverage by the anti-discrimination statutes. For example, employees under age 40 are not protected by the ADEA from age discrimination. These workers are protected from retaliation for engaging in activities protected under the ADEA.

Male employees obviously may not be discriminated against due to pregnancy, but men are protected from retaliation if they protest perceived pregnancy discrimination by an employer, or if they cooperate with a plaintiff or the Equal Employment Opportunity Commission (EEOC).

In recent years, the number of retaliation claims by employees has increased dramatically.

Multiple retaliation claims may ensue from a completely meritless allegation of discrimination, or even a sexual harassment investigation perfectly handled by a human resources department.

Human resources professionals and business owners therefore may benefit from understanding the EEOC's position regarding retaliation.

Two categories

The types of activity for which employees are protected from retaliation can be classified into two main categories:

Opposing practices made unlawful by anti-discrimination statues or participating in proceedings brought under such laws.

The EEOC guidance interprets what constitutes "opposing" unlawful practices and "participating" in proceedings.

The law covers employees whom complain to management about alleged discrimination, whether against themselves or others.

An employee who refuses to obey an order based on a "reasonable belief" that it is discriminatory also engages in protected activity. If the opposition is based on a reasonable and good faith belief that the practice is unlawful, the ultimate lawfulness of the practice is no defense to retaliatory conduct.

An employee who files an administrative charge with the EEOC or a state agency is "participating" in a protected activity and therefore is protected from retaliation. Workers who testify, assist, or participate in any other way in an investigation, proceeding, hearing, or litigation brought under the relevant anti-discrimination statues are covered as well.

Take immediate action

The law allows employers to minimize and even avoid liability for discrimination or harassment if they take immediate and appropriate action to investigate and, if necessary, remedy possible discrimination and harassment.

Given the increasing number of investigations and increased employee training regarding discrimination, harassment and retaliation, perhaps it's not surprising the number of retaliation claims have been increasing over the years.

Proof that human resources policies are enforced consistently is the most compelling evidence in favor of an employer's argument that the company's decision is not motivated by retaliation. The best way to start to provide protection for your organization is by adding an (or updating an existing) anti-retaliation policy.

Writing a policy

The policy should include the following:

1. A clear statement that, like discrimination and harassment, retaliation is prohibited by both law and company policy, and that retaliatory acts will lead to discipline and/or discharge.

2. A brief illustration of types of conduct that might be prohibited by the policy.

3. A mechanism for reporting possible acts of retaliation.

4. A statement that complaints will be promptly investigated and resolved as appropriate.

5. A statement that complaints will be maintained as confidential to the extent practicable, given the need to investigate and resolve issues.

The EEOC says employers should provide "specific training on the subject of retaliation."

It is true that "ignorance of the law is no excuse." The responsibility for managing employee behavior rests with the supervisors who interact daily with employees and understand better what reasonable "behavior" is in a given context.

Whether employers follow changes in laws and regulations on their own, rely on outside resources, or use a combination of both, staying on top of the changing legal landscape is essential.

Mila Stahl is vice president and principal of the Human Resources Group, a Madison human resources consulting and recruiting firm.