避免员工报复陷阱

Employers can be liable under Title VII of the Civil Rights Act of 1964 without ever actually discriminating against an employee.  例如, a Roanoke hair stylist recently brought suit against her former employer alleging that it subjected her to a hostile work environment in violation of Title VII because she was a Caucasian woman dating an African-American man and that the salon terminated her in retaliation for complaining about harassing statements made to her about her relationship.  The court dismissed the stylist’s hostile work environment claim.  然而, the Court stated that she did not need to prove that her employer actually committed an unlawful discriminatory practice to have a claim for retaliation – only that she 相信 她反对的是非法行为.  The court stated that it was clear that the stylist felt she was complaining about discrimination to her employer, and allowed the retaliation claim to go forward to trial. 

许多与雇员有关的联邦法律, 比如第七章和公平劳动标准法案, have built-in prohibitions against retaliating against an employee for exercising certain rights protected by the law, such as complaining about a violation of the law or testifying on another employee’s behalf concerning a violation.  EEOC relation charges have more than doubled during the last 20 years and nearly half of all charges filed with the EEOC last year included a claim of retaliation. 

Retaliation claims have become popular because employees do not have to establish that their employers actually discriminated against them or that they were subject to a hostile work environment, 只有执行了“受保护的活动”,” such as complaining to human resources about sexual harassment, and the employer took an “adverse action” against them as a result.

The danger to employers is how broadly the EEOC has defined employee’s protected rights.  例如, protected activities are not limited to formal complaints, but may include merely providing corroborating information as part of a workplace investigation.  And while discrimination claims usually require an employee to prove a material change in the terms, 条件, 以及雇佣特权(终止), 降级, 减薪, 等.), all that an employee needs to establish a claim for retaliation is to show that the employer took an action likely to dissuade a reasonable employee from engaging in statutorily protected activity – 即使 the action has no tangible effect on that person’s employment (such as threatening to terminate a spouse, 鼓励同事避开他们, 等.). 

The obvious trap here is that an employee can now make a complaint of discrimination to their supervisor and sit back and claim retaliation if the employer attempts to discipline them, 即使, 根据平等就业机会委员会, 这门学科发生在几年后.

While employers cannot prevent every retaliation lawsuit, they can reduce their risk of liability if they are sued by taking the following actions:

1. Drafting an anti-retaliation policy that not only defines retaliation but provides specific examples that might not be apparent to supervisors. The employer should provide the policy to every employee – preferably as part of an employee handbook – and have each sign a statement confirming they have reviewed the policy;
2. Providing regular training to supervisors, managers and employees on the anti-retaliation policy;
3. Create a mechanism that allows employees to bring concerns or complaints about retaliation to management or human resources;
4. 及时调查任何报复投诉, making sure to actually listen to the employee’s concerns, 必要时提供纠正措施;
5. Make it clear that supervisors will be subject to discipline, 包括终止, 采取报复行动;
6. Monitor the treatment of any employee who files a workplace complaint or offers information related to a workplace complaint;
7. Develop a workplace policy for handing adverse employment action, including having human resources review disciplinary warnings, 搬迁, 减薪, 悬浮液, 和终端. There needs to be verifiable, documented, and thoroughly evaluated reasons for any such actions; and
8. Consistently following their own practices and procedures and not deviating for specific cases.

杰夫•威尔逊 是彭德律师事务所的律师 & 亚洲博彩平台排名 who focuses his practice in the areas of employment law, 包括咨询和商业诉讼. He can be reached at (757) 502-7341 or jwilson@ehulk.net.