EEOC Says Retaliation Claims Continue to Rise

Based on data recently released by the U.S. Equal Employment Opportunity Commission (EEOC), retaliation continues to be a growing problem in the U.S. While the number of overall charges of harassment and discrimination filed with the EEOC stayed essentially flat in 2015 (increasing by less than 1%), the number of charges alleging retaliation rose almost 5% compared to 2014.

Increase in Retaliation Allegations Part of a Long Term Trend

This increase is part of a long-term trend that shows no sign of slowing. Since 1997, the percentage of charges alleging retaliation has almost doubled, rising from 22.6% to 44.5% of all charges filed with the EEOC. It’s clear that retaliation concerns need to be top-of-mind for compliance professionals.

If that’s not enough cause for alarm, the cost of the allegations likely will be: Over the same time period period, the monetary benefits paid by employers to the charging parties more than quadrupled. The costs rose from $41.7 million in 1997 to a staggering $173.5 million in 2015. Because these figures exclude monetary benefits obtained through litigation (as opposed to conciliation, settlement, etc.), the total cost to employers almost certainly is even higher.



An Anti-Retaliation Action Plan

With retaliation claims rising, employers should take additional steps to prevent it. A robust approach will include these essential actions:

  1. Increase Anti-Retaliation Training and Communications for Managers
    Ensure managers understand both that retaliation is prohibited and what the definition of retaliation includes. Some actions that may be considered retaliatory are rather subtle and managers may not understand that they are not permitted. Effective compliance training in this area is critical.
  2. Vigorously Enforce Retaliation Policies
    If employees believe their employer does not take retaliation seriously, they are likely to take their concern to a government agency. This action could trigger an investigation not only of the retaliation, but the underlying issues as well.

    Even more importantly, if employees believe that they will suffer retaliation if they speak up about violations of policy or the law, they are much less likely to raise their concerns—and the employer may lose the opportunity to address violations before they become scandals or lead to litigation.
  3. Equip Investigators With the Proper Training and Information
    It is essential not only that investigators understand the range of actions that are deemed to be retaliatory, but also are comfortable weighing the credibility of witnesses in retaliation-related investigations. This is especially true for accurate tracking of substantiation rates of retaliation claims, an important component in measuring the effectiveness of a compliance program.
  4. Ensure Consistent Accountability Across Your Organization
    Managers and supervisors who retaliate must face real consequences, even if they are “rainmakers,” well-liked, or even senior leaders. Giving preferential treatment to employees in positions of power undermines employee confidence that retaliation is taken seriously. This treatment erodes their willingness to speak up.Compliance officers need to take a top-down approach to the organizations’ hierarchy: leaders who were aware of retaliation but turned a blind eye to it still need to be disciplined.

To make sure your policies, training and organizational culture reinforce a zero tolerance philosophy for retaliation, get in touch with an ethics and compliance expert today.

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