Workplace Harassment Training: Trend 1: Retaliation

To help you stay ahead of the curve and to prevent costly risk exposure, each day this week I will blog about one of the 5 latest workplace trends impacting harassment claims. First on my list is retaliation.

2011 is an AB 1825 retrain year and sexual harassment training is top of mind for employers doing business in California. While AB 1825 requires any organization that does business in California, and that has more than 50 employees, to provide 2 hours of sexual harassment training to all California supervisors, every 2 years - training on other forms of harassment, such as race, disability, and religion is essential.

Why? Based on the Equal Employment Opportunity Commission's (EEOC) most recent statistics, the Commission received almost 31,000 charges alleging unlawful harassment in 2010, but only 11,717 of those were sexual harassment charges. The majority of harassment charges alleged some form of harassment other than sexual harassment, such as race harassment, national origin harassment, or religious harassment.

To help you stay ahead of the curve and to prevent costly risk exposure, each day this week I will blog about one of the 5 latest workplace trends impacting harassment claims.

First Up: Retaliation

For the second year in a row, retaliation is the most commonly filed claim with the EEOC. Retaliation claims can result in hefty damage awards and give plaintiffs free reign to scrutinize and base claims on an increasingly wide range of post-complaint conduct.

Retaliation is a broad concept. Employees can file a charge of retaliation if they feel they suffered adverse action (demotion, poor job assignments, the "cold shoulder" etc.) because they filed a discrimination complaint with their employer, or because they participated in a protected activity, such as a discrimination investigation. The original claim doesn't have to be successful, as long as it was made in good faith. That means that if someone files a discrimination claim and it was found that discrimination did not in fact occur, the employee can still win a retaliation claim if they feel adverse action was taken against them because of their original claim.

Managers rarely understand the "stand alone" nature of these retaliation claims, and are shocked to learn that an unsuccessful discrimination complaint can still support a successful retaliation claim.

Particularly when managers feel that discrimination claims are not valid, they can engage in high risk behaviors (like expressing anger over the claims) that create serious legal liability for their employers.

Managing the Risk of Retaliation

Retaliation claims are frequently brought along with discrimination claims, which means that the record number of discrimination claims reported by the EEOC the past three years feeds the unprecedented rise in retaliation claims as well. As a result, it is vital that employers are equipped with policies and training that educate management on the burgeoning risk of retaliation claims.

Retaliation training is essential - managers consistently struggle with this topic and are understandably confused by rules that often seem counterintuitive to them. High quality training should show managers how to respond to employee complaints, the ways retaliation can occur, and, most importantly, the need to seek guidance after a complaint is made.

Retaliation training should be seamlessly integrated into harassment training and EEO training. Employees should also understand the firm rule against retaliation, and the organization's commitment to not tolerate retaliatory behavior from anyone.

Stay tuned for tomorrow's post on my next harassment training trend: Web 2.0

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