When Workers File EEOC Claims
Question: We have a couple of employees who have recently filed Equal Employment Opportunity Commission claims against our company. These employees have had poor performance issues, are constant complainers and we believe their filing was not done for any legitimate reason, but instead was done solely to protect their jobs. After their filing, they have become brazen in their bad behavior, but their supervisors are scared to supervise or reprimand them and co-workers are afraid to work with them for fear that they will end up in the complaint. This is negatively affecting our productivity and morale. How would you recommend we handle this situation?
Answer: It is true that some employees harbor the misconception that filing an EEOC charge automatically makes them "untouchable" or beyond reproach within the workplace. Often, the employees who harbor this misconception may feel emboldened to engage in bad or insubordinate behavior because they do not fear being reprimanded - even when the reprimand is warranted. This obviously poses serious problems for morale and productivity. However, if not handled properly, these discrimination charges can and often do lead to retaliation claims from the employees who filed them. Supervisor or co-worker ostracism of an employee who has filed a charge can be an adverse action, and, with the tense setting you describe, it makes sense to review the legal standard for retaliation and implement best practices to protect your employees and the company.
The numbers tell the story: Retaliation claims comprised 38 percent of all EEOC claims in FY 2012 and have doubled in the last 15 years. EEOC guidance on retaliation provides that "an employer may not fire, demote, harass or otherwise 'retaliate' against an individual for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination" regardless of whether the protected activity is baseless or frivolous. Federal, state and local anti-discrimination laws prohibit employers from retaliating against employees, i.e., taking any materially adverse action against an employee for having engaged in protected activity such as participating in an internal investigation or opposing perceived discrimination. However, a recent Supreme Court ruling provided some good news for employers in defending against these claims. An employee asserting a Title II retaliation claim must prove that the protected activity was the "but-for" cause of the employer's decision to take adverse action against that employee. University of Texas S.W. Med. Ctr. v. Nassar, No. 12-484 (June 24, 2013).
Regardless of whether the administrative charges were frivolous, following these tips will likely improve morale and protect (as best as possible) against retaliation claims.
1) Ensure your anti-retaliation policy is updated. The anti-retaliation policy should be in the disseminated employee handbook, and should provide guidelines for disciplining any employee who violates the policy.
2) Provide training to both the supervisors and colleagues of the complainants. First, supervisors should receive special training in techniques to manage employees who have engaged in protected activity, including filing EEOC charges of discrimination. Your legal counsel can help you develop a training program that will suit your specific needs. Supervisors should receive reminders about the company's anti-retaliation policy and should also be reminded to immediately report any inappropriate comments or behavior. Second, schedule a session with HR or legal counsel to sit down with coworkers who are afraid to work with the employees who filed charges to discuss their concerns and build morale. This can be a forum for the company to communicate that it cares about their employees. The conversation can help build an open culture where employees are not discouraged from asserting their rights.
3) Supervisors should not treat the employees who filed the charges with "kid gloves" merely because they filed charges. Discipline may still be imposed for insubordinate behavior and performance issues so long as the supervisor applies those rules and related discipline even-handedly to other employees who have not complained. Instead of being scared to supervise, counsel your supervisors to lead without fear as long as they are mindful of the inherent workplace sensitivities associated with employees who file charges. Stress that avoidance of such employees, while it may seem to be the "easy way" to supervise them, can, in itself, lead to subtle forms of perceived retaliation such as snubbing, isolation, assigning less desirable projects and providing fewer overtime hours.
4) Counsel supervisors to document performance issues for everyone (not just the complaining employee). Document poor performance or misconduct early and often (preferably before a complaint is lodged next time around). Brazen behavior rarely occurs in an instant, so document any matter concerning job performance and attitude.
5) If possible or practicable, consider bringing in a new decision maker to supervise the complainants. Ideally, the new supervisor would have no knowledge of their administrative complaints. It is best for an HR professional or different manager unaware of the complaint to make any "ultimate" decision or to implement an independent second-level review of all actions taken with respect to the employee that might be considered adverse employment actions.
6) Provide the anti-retaliation policy to the employees who lodged a complaint. As awkward as it may be, check in with the employee periodically despite the insubordinate behavior. Silence is not golden when protecting against retaliation.
7) Do not publicize an employee's complaint or charge beyond those who need to know. Keep investigations as confidential as possible and only provide information about them on a need-to-know basis.
8) When all else fails, consider a severance or release to avoid a potential retaliation claim. Although this may seem counterintuitive, the longer a disgruntled employee remains in your midst, the more exposure your company has to a potential retaliation claim whether or not such a claim is warranted. In addition, disgruntled employees can drag down morale and productivity amongst other employees. So, in weighing your options, it might make sense to compare the cost and benefit of preparing a severance agreement versus keeping the employees on the payroll.
Keisha-Ann G. Gray is a partner in the labor and employment law department of Proskauer in New York and co-chair of the department's employment litigation and arbitration practice group. Proskauer Associate K.M. Zouhary assisted with this article.