Addressing retaliation is good for businesses and for workers, a panel of experts told the commissioners of the Equal Employment Opportunity Commission (EEOC) during a meeting held recently.
“Effective strategies, such as customized training and timely intervention, are critical to prevent and correct workplace retaliation,” said EEOC Chair Jenny R. Yang. “Such efforts benefit workers and employers and make good business sense.”
Claims of retaliation are the most frequent charges filed with the EEOC, accounting for almost 43 percent of all claims filed in 2014. Raymond L. Peeler, EEOC senior attorney advisor said: “[R]etaliation is the linchpin for all civil rights enforcement. If employees fear the repercussions of filing a charge or complaint, then their rights are unlikely to be enforced.”
According to Commissioner Charlotte A. Burrows: “When retaliation makes employees too afraid to report discrimination, it creates a climate in which discrimination can thrive, affecting businesses’ bottom lines and undermining the basic right to equal employment opportunity.
“Today’s meeting made clear that the commission, employers, and employees share an interest in establishing workplace cultures that do not tolerate retaliation,” she added. “We look forward to working collaboratively to create retaliation-free workplaces.”
The meeting also brought focus to the emerging issue of punitive pay secrecy policies. Lisa J. Banks, of Katz, Marshall & Banks, said “when employees are prohibited from inquiring about, disclosing, or discussing their compensation with fellow workers, compensation discrimination is much more difficult to discover and remediate, and more likely to persist.”
Another concern of the EEOC is retaliation against vulnerable migrant and immigrant worker populations. Daniel Werner, senior supervising attorney for the Southern Poverty Law Center, said that he works every day with people whose fear of retaliation prevents them from speaking out against discrimination and seeking recourse for other labor abuses. “If retaliation is allowed to occur with impunity, so will the underlying discrimination,” Werner said.
Sharon L. Sellers, president, SLS Consulting, noted that the most successful training programs focus on raising awareness of discrimination and retaliation and include components on the value of diversity and inclusion. However, she noted that “the most important element to address is the culture of the organization.” Sellers recommended human resource professionals focus on the business case for diversity and inclusion, reminding leadership that it is in the organization’s interest to identify potential discrimination and address the behavior as soon as possible.
EEOC Trial Attorney Anica C. Jones spoke about EEOC v. New Breed Logistics, in which a jury awarded $1.5 million dollars to four workers for unlawful sexual harassment and retaliation. Importantly, she said that the EEOC’s case also established a new precedent that a worker’s complaints to a supervisor to cease harassing conduct constitute protected activity.
Jacqueline Hines, one of the four workers at New Breed Logistics involved in the case, described the harassment and retaliation she experienced and how she stood up for her rights. She said she hoped telling her story would “help to prevent harassment and retaliation of other individuals in the future.”
Many of the witnesses at the meeting agreed that training of employers is crucial to reducing retaliation. Karen Buesing, partner, Akerman, LLP, said that, “supervisors should be trained to recognize and respond to complaints of discrimination.”
Dexter R. Brooks, associate director of Federal Sector Programs for EEOC, recommended other best practices, such as distributing a non-retaliation policy to all employees. He said, “[E]mployers should have effective complaint procedures in place and create workplaces where employees not only feel comfortable reporting instances of retaliation, but also understand the importance of doing so.”