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WHAT EMPLOYERS NEED TO KNOW ABOUT WORKPLACE RETALIATION

May 21, 2012

The law of retaliation is one that continues to expand and evolve as federal and state legislatures continue to expand the rights of individuals who make complaints in the workplace about perceived unlawful action taken by employers. The courts interpreting cases involving retaliation have often taken a broad view of the kind of activity that employees engage in that will be subject to the anti-retaliation provisions of numerous federal and state laws.

The Equal Employment Opportunity Commission (EEOC) reported statistics in January 2012 for the year 2011 showing
retaliation claims rising faster than any other category of complaint. Over a 10-year period between 2001 and 2011, retaliation claims (all statutes) rose by 68% and retaliation claims (Title VII only statutes) rose by 54%. Although other types of claims (disability & National origin) have grown as well, the retaliation claim numbers should be a concern to employers.  The attached charge displays EEOC complaint statistics over a 14 year period.

What is retaliation? Based on U.S. laws, it is any adverse action that an employer takes against an employee in response to a
complaint that person has made about discrimination or harassment. It can also apply to employees who exercise their rights under laws such as workers comp, employment laws, FMLA or other leave laws. Recent court decisions have gone even further, extending the same protection to employees who participate in investigations of other employees’ complaints. The original complaint does not need to be well founded in order for the courts to determine that the employee was indeed retaliated against. Retaliation includes adverse actions such as wage reductions, disciplinary measures, demotions, negative performance
evaluations, hostile attitudes, changes in job assignments or shifts, time off without pay, and of course, terminations.

In essence, the Supreme Court as well as other courts have given broad protection to employees who complain about alleged violations of employee-protection statutes. Because these laws cover such a broad spectrum of employment law, most employers today are not prepared to understand what retaliation and thus any decision made by an employer, either well intentioned or not, can be harmful to the employer.

Does this mean that an employee who has made a complaint now gets a free ride to do whatever they want in your workplace?  No — but it does make the discipline process more complex if you are going to discipline a complainant. If an employee has had a history of excellent performance reviews, makes a complaint of discrimination, and then their next review is poor, this will appear to be retaliation. Therefore, an employer will need to follow a strict progressive discipline policy when dealing with an employee whose performance starts to slip, or who disobeys company policies or procedures. In addition, the employer will need to take extra care to check their facts before acting, and make sure that any adverse action against a complainant is consistent with
non-complainant employees.

With retaliation claims climbing sharply, it is crucial that employers become proactive in preventing retaliation in the workplace. The steps that employers can take to prevent such claims include educating all employees about their employment policies including sex harassment and discrimination policies and especially educating managers on how to handle complaints of discrimination in the workplace.

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