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Retaliation Claims Live On Even If The Underlying Claim Dies

Written exclusively for ChubbWorks

The Equal Employment Opportunity Commission (EEOC) is suing a Michigan property insurance firm for retaliation against a black employee.

The employee originally filed a charge with the EEOC, alleging her employer denied her a promotion because of her race. About three months later, she discovered that her employer hired a white employee for a similar position but at a higher wage rate, so she revised her pending charge with the EEOC to include wage discrimination.

Not long after amending her charge, her employer reprimanded her for the first time since she began working for the employer. The EEOC alleges in the lawsuit that the employer did not discipline other employees in the same circumstances - those who had not reported discrimination.

The EEOC alleges the employer's actions violate Title VII of the Civil Rights Act of 1964, which prohibits retaliation against employees who exercise their right to report workplace discrimination. The EEOC seeks monetary relief for the employee, as well as injunctive relief prohibiting further discrimination by the employer. "EEOC Sues Proctor Financial for Retaliation" www.eeoc.gov (Jun. 28, 2019).

Commentary and Checklist

One of the most risky elements of the EEOC's lawsuit against the above employer is the retaliation claim. Whether the employee's claims of racial discrimination ultimately prove valid, the retaliation claim exists as a separate claim.

Managers and supervisors must be trained regarding how adverse employment actions can be viewed as retaliation. Although employers have the right to take adverse actions against any at-will employee for any legal reason, the risk of a retaliation claim is always a concern, particularly if the adverse action occurs soon after the employee reports any alleged wrongdoing.

Be sure retaliation protections are extended to all those who report discrimination, even if they were not the target of the discrimination but were simply witnesses to it.

Here are some suggestions that will help limit your risk of retaliation claims:

  • Include an anti-retaliation provision in your equal employment policy.
  • Provide training for managers on retaliation and the wide range of actions that can constitutes retaliatory behavior.
  • Encourage managers and supervisors to consult with human resources before taking an adverse employment action against any employee.
  • Document good reasons for adverse employment actions. Use a team decision-making approach.
  • Take all complaints of retaliation seriously and respond quickly.
  • Document carefully all efforts to prevent retaliation and discrimination, including all investigations undertaken.
  • Make sure any employee who engages in retaliatory behavior is disciplined in a timely and consistent manner.
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