In late January, the Equal Employment Opportunity Commission issued enforcement guidance on retaliation and related issues. For those employers who may not be familiar, retaliation is a cause of action under Title VII of the Civil Rights Act.
The Equal Employment Opportunity Commission's website explains retaliation as the following:
"All of the laws we enforce make it illegal to fire, demote, harass, or otherwise 'retaliate' against people (applicants or employees) because they filed a charge of discrimination, because they complained to their employer or other covered entity about discrimination on the job, or because they participated in an employment discrimination proceeding (such as an investigation or lawsuit)."
The EEOC states that "retaliation is the most frequently alleged basis of discrimination in the federal sector." As such, it is certainly worthy of an employer's attention.
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While this proposed guidance is certainly a useful tool for many employers, one of the most helpful pieces of information in the guidance is the best practices for employers. The EEOC notes that these best practices are not themselves legal requirements, but rather are steps that may help reduce the risk of violations.
First, it is recommended employers maintain a written, easily understandable anti-retaliation policy. This policy (or policies) should include a clear explanation of retaliation and steps for reporting retaliation.
Second, not only is it important to have a policy, but also it is important to train all employees on the policy. This training should be for all managers, supervisors and employees. Training can be tailored to specific areas or issues of concern. Also, it is recommended to provide follow-up and refresher training throughout the course of employment.
Third, the commission recommends that employers provide individualized support for any parties or witnesses who have been involved in a charge or allegation of discrimination or harassment.
Fourth, there should be proactive follow-up. Following up on employee problems and issues is a great best practice for employers, but also one of the easiest to forget to do. Employers should make sure that follow-up does not fall through the cracks.
Last, but not least, review any actions with an in-house counsel, human resources representative, outside lawyer or other individual who can help provide context and support on any decisions.
Should you have any questions about these best practices or require assistance with issues discussed in this article, contact an experienced employment lawyer.
Sarah Phaff is an employment law attorney in Atlanta and Macon at the national labor and employment law firm of Constangy, Brooks & Smith LLP.