Workplace Retaliation as related to filing or being a witness in an EEO charge, complaint, investigation, or lawsuit (Federal jurisdiction)

Introduction

Most individuals understand that there are active laws that guard employees against any form of discernment and harassment. However, most do not understand that the same laws guard employees against retaliation. This, therefore, implies that an employer cannot punish the workforce for filling harassment or discernment complaints or even for partaking in workplace examinations. In this case, the punishment does not generally refer to demotion or firing but it is an incorporation of other undesirable employment actions that involves being denied a transfer or pay increase or promotion to a more deserving position to being excluded from mentoring and training openings. Work place retaliation takes place when an employer penalizes an employee for involvement in lawfully guarded activities[1]. Retaliation, in this case, might incorporate activities that are undesirable to the employees such as salary decrease, shift and tasks relocation, dismissal as well as a demotion. However, retaliation can additionally be more restrained. The federal law guard’s staffs from retaliation when they file complaints which are either internal or external to bodies such as Equal Employment Opportunity Commission (EEOC) in regard to discernment and harassment regardless of whether the claim has no valid foundation given that it was filed in good belief[2]. Over the last decade, EEOC has conveyed that workplace retaliation is the utmost common issue that is supposed by federal staffs as well as the most shared discrimination in all the federal cases.

Thesis Statement

Workplace retaliation does not refer to operating in a hostile workplace or harassment but it mainly involves the undesirable punishment subjected to an employee after filing a legally guarded complaint or participating in workplace assessments. As workers are becoming more aware through training and education in regard to their rights, it is essential for employers to adopt suitable practices that lower the likelihood of facing retaliation complaints.

Road Map

This paper will seek to analyze workplace retaliation as related to filing or being a witness in an EEO charge, complaint, investigation, or lawsuit (Federal jurisdiction). In that based on the recent reports that retaliation is the prime base of workplace retaliation, there is a need to assess how retaliation occurs, its establishment as well as strategies that organizations and employees can partake towards acquiring protection against retaliation. In addition, the report will evaluate on what qualifies for retaliation, whether the complaint certainly matters, the laws guarding retaliation and finally make probable solutions and recommendations.

Background

Workplace retaliation litigations are growing rapidly thus becoming a common occurrence and particularly costly for employers. When a complaint is filed by a staff in regard to harassment or discernment in the workplace, it becomes commanding that the employer has to take some serious consideration by treating the complaint with unique care[3]. In that, if the action course utilized is perceived to be oriented at punishing an individual for their complaint in any manner the organization might be subjected to a costly lawsuit[4]. Given that discernment of harassment is prohibited by laws that guards employees discrimination of any kind is an unethical and yet costly response[5]. Based on EEOC’s recent reports it is apparent that close to half of all the cases that are filed yearly covers retaliation cases with approximately 42 percent of the discrimination conclusions being grounded on retaliation. In fact, the general number of all the discrimination findings that are grounded on retaliation claims have outweighed other forms of discrimination.

Precisely, retaliation is the most commonly purported discrimination base within the federal division since 2008. Retaliation cases qualify as any intense action that an organization applies to a worker on due to the fact that they filed an objection regarding discernment or harassment. The intense of undesirable actions might incorporate actions such as dismissal, offering untrue or negative assessments, demotion, pay reduction or duties reallocation. The guard in contradiction of retaliation is not only applicable to those that filed the objections but applies to everyone who decides to take part from the investigations that developed from the objection[6]. This, therefore, implies that the workers interrogated in regard to the objection cannot be discerned for their participation in the inquiry.

Today more than before employees have well-guarded against any form of discernment a subject that raises concerns given that it affects productivity in addition to the incurred cost by the employer. Based on the existing retaliation cases statistics, it is apparent that most employers are unknowingly trapped by the unintended retaliation against respective workers. The frustrating thing for most employers is that despite the fact that the actual discernment or harassment objection has not valuable base or it is fictitious the employer remains on the nail if they decide on taking actions that are perceived to be retaliatory[7]. In this context, it becomes apparent that punishing actions should never be applied to a worker on the ground that their complaint was baseless of forged because the truth of the objection never matters. Work place retaliation holds some intense consequences for the employer and therefore, rather than focusing on the worker that filed the objection organizations are required to punish the retaliator.

Argument

To most workplace retaliation involves harassing workers or subjecting them to a hostile working surrounding as punishment after filing an objection which is legally guarded or in participating in retaliation investigation. However, workplace retaliation involves any discriminatory or undesirable punishment by the employer to the respective employees for participating in legally guarded actions. Given that the adverse actions by the employer would hinder a reasonable individual in the discrimination situation to make an actual complaint, this is categorized as illegal retaliation. In other words, retaliation is a form of discriminatory punishment subjected to an employee for the attempt to guard their privileges. Even if the objection turns to be baseless the law also guards workers who participate in EEOC assessments or those that act as witnesses during the EEOC litigation. In addition, other laws such as ADEA protects all another kind of whistleblowers as well such as those that objects unsafe working places. It is worth noting that some, state laws also forbids employers retaliation against their workers[8].

Every retaliation action does not necessarily imply that the employee’s job is at risk. In that retaliation can originate as a form of unanticipated or prejudiced performance evaluations, intense management of all the employee's activities or even an immediate exclusion from employees teams in regard to training or project accomplishment. Despite the fact that employers are permitted to discipline their workers in spite of filing an objection or not, it benefits particularly after being careful in regard to how the employees involved in the legal objections are disciplined. In that after the employee has filed an objection then months later acquire undesirable performance evaluations, even if the evaluation was not connected with the complaint, frequently the worker will interpret the evaluation as retaliation. In accordance, any form of disciplinary action subjected by the employer that is bound to negatively impact an employee after the objection should involve proper documentation of the foundation of this disciplinary actions. Otherwise, without the presence of reliable evidence in contradiction, the legal team will automatically suspect the timing amid the objection and the subjected punishment[9].

Workplace retaliation is complex and particularly demanding for the organization. However, given that retaliation is classified as the prime base in regard to workplace discrimination an occurrence that might ruin the general capability of an organization it can be prevented. Surprisingly, workplace retaliation prevention is particularly easy which does not necessitate many finances, time or even effort. To begin with, it is essential to develop a regulatory policy that prohibits discrimination or retaliation. This policy should adequately describe retaliation, the resulting consequences, and reporting procedures. Also, it is beneficial to take the raised complaints seriously and accurately by applying a thorough investigation. In this context, employers are required to focus on the retaliator, not the complainer. Complaints should be preserved as confidential and the associated reports stored safely for further references.  Employees should be made to understand that filing complaints do not affect their jobs given that it is a form of protecting the organization from adverse consequences. It is imperative that the process is well documented in case of any legal proceedings. This means that there should be a process that seeks to keep documentations and reports from the actual complaint, via the whole investigation as well as the general conclusion.

Retaliation is the most common supposed basis of discernment within the federal area and the most shared discernment within the filed cases. Retaliation particularly occupies 42 percent of all the discrimination cases within the federal sector. The EECO policies forbid actions that are intended to punish employees or those that are applying for emphasizing their privileges to attaining liberation from any kind of discrimination that incorporates harassment. Emphasizing these kinds of EEO privileges is commonly referred to as protected activity which can occupy different forms[10]. For instance, it is particularly unacceptable legally to retaliate against workers for being a witness or filing objections in an EEO case, investigation, lawsuit or even an objection. In addition, those that intervene in the quest of guarding other employees are also guarded by the EEO laws[11]. In that, one should never be retaliated for participating in an interrogation in regard to a supposed harassment. In addition, communicating in regard to discrimination is protected for instance when a worker is involved in investigating about salary details in order to unveil probably discriminatory salaries. 

Employees can file a qualifying retaliation complaint in situations where the resist sexual advances aimed to result in favorable impacts. In this context, if the worker is discriminated against on the ground that they resisted the advances then the complaint is probable and particularly costly for the employer[12]. Partaking in the complaint investigation procedure is also guarded against being retaliated under any situation.

However, the engagement in EEO operations does not protect any worker from acquiring discipline charges if their actions violate the organization’s laws. In this case, employers are permitted to discipline or even dismiss the employees given that they are driven by non-retaliatory and non-discerning motives that would result in direct disciplinary consequences based on the ground that they acted contrary to the company’s laws. However, the laws do not permit the employer to apply any action in responding to EEO’s operations which would, in turn, discourage other individuals from participating in the activity or even making similar objections in the future if discernment is subjected. In this case, the organizations are restricted from acting in a discouraging manner given that witnesses are well protected and voluntary participation is encouraged. For instance, depending on the provided facts retaliation can be approved if the employer acts on the basis of EEO’s activities in regard, transferring the worker to a less deserving position, engaging in physical or verbal aggression, threatening their participation, increasing scrutiny, offering non-factual performance evaluation that negatively affects the worker’s performance and career and creating a rather challenging workplace for the employees[13]. This might include punishing the complainant for filing an objection in regard to the desecration of EEO laws by intentionally modifying the worker’s tasks and working schedules in order to create a conflict with their personal or family responsibilities[14].

Retaliation is among the most sensitive discriminatory subjects such as sexual orientation that are not adequately incorporated within most organizations discriminatory policies. It is worth noting that retaliation can directly affect the general capability of the organization similar to all other discriminations. Based on findings most workplaces discriminations are particularly fueled by retaliation. In that, the employer’s tend to acquire frustration on the ground that the workers have acted against their wishes thus placing the company at risk with the law. However, it is worth acknowledging that given that both parties are affected by the issue retaliation is preventable with the engagement of probable policies that clearly describes and outlines procedures for handling such cases. Retaliation is even worse if it has resulted in dismissal or demotion because in this case the privileges of the worker are contradicted.

As workers are becoming more aware through training and education in regard to their rights, it is essential for employers to adopt suitable practices that lower the likelihood of facing retaliation complaints. Previously, retaliation claims by employees used to be deemed as a common occurrence that the company can evade easily. However, this is not the case for any of the claims that are filed in regard to harassment and discernment. Today, retaliation cases often frontier and acts as the central investigation point in litigation processes and there are actually more challenging for any organization to cross through. Anti-retaliation guidelines are universal in the main employment laws. One of the usual endowment is offered by ADEA which particularly prohibits any form of discrimination on the ground of age and therefore, prohibits any punishment against those that participate in the investigation as a witness, complainant or played an assistive role[15].

In the interpretation of the primary risks that are involved with the type of claims, it is vital for the workers to comprehend the general nature as well as special issues that are associated with retaliation objections. The most suitable practices for lowering the likelihood of employers ending in the wrong position based on the objections can also be lowered. For instance, the recent Statistics offered by EEOC demonstrate the dramatic increase in the rate of retaliation cases filed by complainants with Federal organizations. For the paramount time ever, in 2011 the rate of the retaliation filed cases in relation to EEOC outweighed the general charges that were raised in regard to discrimination on the basis of religion, age, disability and so on[16]. A clear observation at the increasing retaliation cases it is apparent that the charges are increasing rather rapidly with time. There has been an established distinction in regard to how courts handle retaliation cases on the ground that they form the ground for discrimination in general. This can be proved by the recent conclusions by federal courts that are eager to offer summarized evaluation in regard to discrimination but does not offer conclusive evaluations of retaliation charges.

The sudden increase and commonness of retaliation claims are justifiable. In that, the workplace today comprises of smart and well-equipped workers in regard to knowledge. In addition, social media sites and the internet additionally provides increased contact with data in regard to workers privileges in the employment sector. More so, retaliation claims are in most cases easier to argue when equated to the complex nature of other forms of harassment and discrimination which necessitates demonstrating the targets of the employer to be discriminative. Contrary, retaliation charges can primarily be grounded on objective subjects that are fueled by sequential intentions. Employers can effectively handle retaliation cases today by having an applicable mindset[17]. For instance, most companies today conduct training in regard to discrimination but fail to incorporate retaliation guidelines and description. Every company is required to be responsible in regard to preventing the occurrence of any discrimination given that the consequences of failure are fatal.

Conclusion

In summing up, it is apparent that retaliation cases have been on the rise recently as the base of other kinds of discrimination. For several years now, EEOC has reported that retaliation cases outweigh those that are related to discrimination based on age, gender, race or sexuality. Retaliation is complex for the employer and particularly expensive. In this context, employers are required to create adequate written regulations that incorporate all the specific against retaliation. In addition, they should also make publication and apply the policies in a steady and reasonable manner. Employers should be mindful of the common caution for documentation. There is probably no other sector within the employment laws that are well served by the internal document as proof that the retaliation assertions protection. Having properly documented organizational strategies and decisions in regard to prohibiting retaliation can in most cases be utilized to dismiss the claims legally. From statistics, the current rise of retaliation cases is mainly fueled by the fact that employees understand their privileges quite well and the fact that the claims are guarded legally. There is, therefore, a necessity to prevent the occurrence by protecting the organization while upholding the rights of all the employees despite their objections.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

References

Brake, Deborah L. "Retaliation in an EEO World," Indiana Law Journal: Vol. 89: Iss. 1, Article 7. (2014). Retrieved from http://www.repository.law.indiana.edu/ilj/vol89/iss1/7

Brake, Deborah L. "Retaliation in the EEO Office." (2014).

BUCKLEY, JOHN F. I. V. Equal Employment Opportunity Compliance Guide: 2017 Edition. S.l.: WOLTERS KLUWER LAW & BUS, 2016. Print.

Cooney, Lisa. "Understanding and Preventing Workplace Retaliation." Massachusetts Law Review 2015 (2016): 2014.

EEOC. Retaliation- Making It Personal. 2017. Retrieved from https://www.eeoc.gov/laws/types/retaliation_considerations.cfm

Ford, Karen E, Kerry E. Notestine, and Richard N. Hill. Fundamentals of Employment Law. Chicago, Ill: Tort and Insurance Practice, American Bar Association, 2000. Print.

Gallus, Jessica A., Jennifer A. Bunk, Russell A. Matthews, Janet L. Barnes-Farrell, and Vicki J. Magley. "An eye for an eye? Exploring the relationship between workplace incivility experiences and perpetration." Journal of Occupational Health Psychology 19, no. 2 (2014): 143.

Miles Angela, Fleming Marka, McKinney Arlise P. Retaliation: legal ramifications and practical implications of discriminatory acts in the workplace", Equality, Diversity and Inclusion: An International Journal, Vol. 29 Issue: 7, pp.694-710. (2010). Retrieved from https://doi.org/10.1108/02610151011074416

Mills, Judge Michael P. "EEOC v. Resource Employment Solutions, LLC." (2016).

Mitchell Marie S. & Ambrose Maureen L. Abusive Supervision and Workplace Deviance and the Moderating Effects of Negative Reciprocity Beliefs. Journal of Applied Psychology the Vol. 92, No. 4. (2007). 1159–1168 American Psychological Association. 

Paludi, Michele A, Carmen A. Paludi, and Eros DeSouza. Praeger Handbook on Understanding and Preventing Workplace Discrimination. Santa Barbara, Calif: Praeger, 2011. Print.

Secunda, Paul M. Retaliation and Whistleblowers. Austin: Wolters Kluwer Law & Business, 2009. Print.

Shilling, Dana. Complete Guide to Human Resources and the Law. , 2015. Print.

Solano, Frank & Kleiner, Brian H. “Understand and preventing workplace retaliation, Management Research News, Vol 26 Issue 2/3/4. (2003). Retrieved From http://www.pmlaw-us.com/area/retaliation/

U.S Equal Employment Opportunity Commission. Facts about Retaliation. (2017). Retrieved from https://www.eeoc.gov/laws/types/retaliation.cfm

 

[1] EEOC. Retaliation- Making It Personal. PP. 1-1. 2017.

[2] Solano, Frank & Kleiner, Brian H. “Understand and preventing workplace retaliation, Management Research News, Vol 26 Issue 2/3/4. (2003).

[3] Secunda, Paul M. Retaliation and Whistleblowers. Austin: Wolters Kluwer Law & Business, 2009. Print.

[4] U.S Equal Employment Opportunity Commission. Facts about Retaliation. PP. 1-1. (2017).

[5] Shilling, Dana. Complete Guide to Human Resources and the Law. , 2015

[6] Brake, Deborah L. "Retaliation in an EEO World," Indiana Law Journal: Vol. 89: Iss. 1, Article 7. (2014).

[7] Ford, Karen E, Kerry E. Notestine, and Richard N. Hill. Fundamentals of Employment Law. Chicago, Ill: Tort and Insurance Practice, American Bar Association, 2000.

[8] BUCKLEY, JOHN F. I. V. Equal Employment Opportunity Compliance Guide: 2017 Edition. S.l.: WOLTERS KLUWER LAW & BUS, 2016.

[9] Paludi, Michele A, Carmen A. Paludi, and Eros DeSouza. Praeger Handbook on Understanding and Preventing Workplace Discrimination. Santa Barbara, Calif: Praeger, 2011.

[10] Miles Angela, Fleming Marka & McKinney Arlise P. Retaliation: legal ramifications and practical implications of discriminatory acts in the workplace", Equality, Diversity and InclusionVol. 29 Issue: 7, pp.694-710. (2010)

[11] Gallus, Jessica A., Jennifer A. Bunk, Russell A. Matthews, Janet L. Barnes-Farrell, and Vicki J. Magley. "An eye for an eye? Exploring the relationship between workplace incivility experiences and perpetration." 19, no. 2 (2014).

[12] Gallus, Jessica A., Jennifer A. Bunk, Russell A. Matthews, Janet L. Barnes-Farrell, and Vicki J. Magley. "An eye for an eye? Exploring the relationship between workplace incivility experiences and perpetration." 19, no. 2 (2014).

[13] Brake, Deborah L. "Retaliation in the EEO Office." (2014).

[14] Brake, Deborah L. "Retaliation in the EEO Office." (2014).

[15] Mills, Judge Michael P. "EEOC v. Resource Employment Solutions, LLC." (2016).

[16] Cooney, Lisa. "Understanding and Preventing Workplace Retaliation." Massachusetts Law Review 2015 (2016): 2014.

[17] Cooney, Lisa. "Understanding and Preventing Workplace Retaliation." Massachusetts Law Review 2015 (2016): 2014.