Employers: Harassment Retaliation Has the Highest Price Tag in Business and at Work

Last year (2017), the EEOC won harassment retaliation settlements from employers to the tune of $192 million.

One of several definitions of harassment retaliation from the EEOC website:

The EEO laws prohibit punishing job applicants or employees for asserting their rights to be free from employment discrimination including harassment.  Asserting these EEO rights is called “protected activity,” and it can take many forms.  For example, it is unlawful to retaliate against applicants or employees for, among other employee activities during a harassment complaint investigation process:

• filing or being a witness in an EEO charge, complaint, investigation, or lawsuit
• answering questions during an employer investigation of alleged harassment
• refusing to follow orders that would result in discrimination.

Participating in a complaint process is protected from retaliation under all circumstances. Other acts to oppose discrimination are protected as long as the employee was acting on a reasonable belief that something in the workplace may violate EEO laws, even if he or she did not use legal terminology to describe it.

For example, depending on the facts, it could be retaliation if an employer acts because of the employee’s EEO activity to:

• reprimand the employee or give a performance evaluation that is lower than it should be;
• transfer the employee to a less desirable position.

As reported by the Times Union in March 2018, activities outlined in the above EEOC guidance (as well as similar guidance from the NYS Division of Human Rights) occurred, including but not limited to terminating and reassigning (female) employee witnesses, while the target of the investigation did not receive corrective action:

A top official at the state Division of Criminal Justice Services who was found to have threatened female employees with physical violence and engaged in years of sexual harassment, racism and ageism was not disciplined by the agency. Instead, DCJS punished two women who provided testimony about the case to the state inspector general’s office.

Employers: how do you properly protect employees who file harassment complaints from retaliation (which also protects the organization’s financial and reputational interests), in business and at work?