I recently read an article published by SHRM entitled “Employer Couldn’t Selectively Enforce Prohibition on Sleeping on the Job” and I thought “Oh, there has got to be a catch.” Yes, employers and HR professionals are sometimes flummoxed by EEOC decisions that seem random and/or employee friendly to a fault, but this is going really far. Guess what? I was right, there were a lot of extenuating circumstances. To summarize, the article describes an employee who had worked for the U.S. Postal Service for 16 years without any discipline issues. Then this employee, a U.S. born woman of Chinese descent, filed a discrimination complaint with the Equal Employment Opportunity Commission and she found herself the target of her supervisor’s ire. She got written up for actions that other employees did with impunity—like occasionally sleeping in her squad car! Her supervisor rescinded a leave she had been given and even gave her a broken chair to sit on. Really? Ultimately, the courts decided in favor of the employee and gave her back pay and attorney fees — because of the initial discrimination claim? Nope, because of the retaliation.
In 2017, the EEOC reported that nearly half the cases it heard — more than 40,000 — were on retaliation. I wish I could say this surprised me, but it doesn’t. Too often after we have been asked to complete an investigation on a discrimination or harassment complaint, the investigation is done and the determination is made, the employer drops the matter altogether. Maybe they fired the employee, maybe they took some other disciplinary action or maybe it was determined that there was no discrimination. Whatever the outcome, most employers just want to put it behind them, fast. So, no follow up. As Ricky Bobby says, “This is not good.”
The Investigation Is Only The Beginning
That naïve or “maybe if we don’t talk about it, it will go away” perspective opens the company up to all kinds of future issues and possible liabilities which translates into stuff that costs money. After someone has filed a complaint, there’s likely bad feelings between that employee and some other people at the organization. Leaders often struggle with knowing what to do next.
So know this, the investigation is only the beginning. We may assume that employees know not to retaliate; and know what constitutes retaliation. Often, that’s not the case. Resolution of the complaint and investigation includes providing employees and supervisors with mediation to discuss what happened and move to an agreement. Trust is paramount to successful working relationships and healing can take some time. Employees may need coaching and formal training on what retaliation is and how to avoid even the appearance of it.
Retaliation is often a response from emotionally immature people who can’t manage their emotions or separate personal issues from workplace issues. And that’s another whole can of worms. Don’t let a complaint be the end of it. And if you want help protecting your company against the risks of retaliation, and restoring or renewing your company culture after an incident, call us.
