EEOC Ponders Ways to Curb Retaliation Against Workers Who Pursue Bias Claims

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By Kevin McGowan

June 17 — After several years in which retaliation has been the most frequently cited discrimination claim in both private sector and public workplaces, the Equal Employment Opportunity Commission June 17 heard witnesses representing employers, workers, advocacy groups and government discuss potential ways to prevent reprisals against those who complain about suspected discrimination.

Retaliation under all the statutes the EEOC enforces accounts for more than 30 percent of the nearly 100,000 private sector discrimination charges the agency receives each year, EEOC Chair Jenny Yang (D) said.

Preventing retaliation is crucial because employee-initiated charges and complaints fuel the agency's enforcements efforts, EEOC Commissioner Victoria Lipnic (R) said. Retaliation harms not only the employee who lodged a discrimination charge, but has a “ripple effect” that chills other workers' willingness to come forward as well, she said.

Almost 50 percent of all discrimination complaints filed against federal agencies now include a retaliation claim, said Dexter Brooks, associate director of federal programs in the EEOC's Office of Federal Operations in Washington. Some 40 percent of the EEOC's findings of discrimination by federal agencies at the appeals level are based on retaliation, he said.

The costs of retaliation can be particularly severe for vulnerable workers in low-wage jobs, including immigrant and migrant workers, said Daniel Werner, a senior supervisory attorney with the Southern Poverty Law Center's Immigrant Justice Initiative in Atlanta. Fear of retaliation, including deportation, loss of a visa or blacklisting, is “the greatest single factor” deterring immigrant and migrant workers from complaining about discrimination or harassment, he said.

The EEOC held its hearing on retaliation two days after an agency task force on workplace harassment conducted its first public meeting. Many of the themes raised during the retaliation hearing echoed those discussed by the task force on harassment, another persistent workplace bias issue the EEOC is determined to ameliorate.

Lipnic, who is co-chair of the harassment task force, said she is “struck by the commonality of purpose” among all interested parties in identifying effective ways to prevent harassment and retaliation before they occur.

EEOC Guidance Update Needed 

The EEOC hasn't formally addressed retaliation since a 1998 Compliance Manual amendment, so agency materials need to be updated to address the U.S. Supreme Court's seven decisions on retaliation issued since then, said Raymond Peeler, a senior attorney adviser in the EEOC's Office of Legal Counsel in Washington.

The most recent is University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517, 118 FEP Cases 1504 (U.S. 2013), in which the Supreme Court ruled a plaintiff under Title VII of the 1964 Civil Rights Act must show unlawful retaliation was the “but for” cause of an adverse employment action.

There also are “several new legal developments” in lower federal courts, with “inconsistent results” among the federal circuits on retaliation issues, Peeler said. Open issues include whether internal complaints are protected activity and whether employer conduct that's not an “ultimate employment action” nevertheless is a “materially adverse action” that supports a retaliation claim, Peeler said.

“Retaliation is the linchpin for all civil rights enforcement,” Peeler said. “If employees fear the repercussions of filing a charge or complaint, then their rights are unlikely to be enforced.”

The EEOC also should clarify, for example, whether human resources employees or other internal equal employment opportunity compliance personnel are shielded from retaliation if they deliver bad news to their employer, said Lisa Banks, a plaintiffs' attorney with Katz Marshall & Banks in Washington.

Some courts have ruled HR employees don't engage in “protected activity” under Title VII merely by informing their employers about potential EEO violations, but need to do something outside their normal job responsibilities to secure anti-retaliation protection, Banks said. The EEOC should say such employees' reports are protected activity and not leave “an entire segment” of employees outside Title VII's protection, she said.

Bona Fides of Retaliation Charges Debated 

If the EEOC is alarmed about the “explosive” growth in retaliation claims, employers are “even more concerned,” said Karen Buesing, a partner with Akerman LLP in Tampa, Fla.

Although unlawful retaliation “certainly” occurs sometimes, Buesing said an employee who “sees the writing on the wall” regarding discipline or termination for poor performance might be tempted to file a discrimination charge to secure protected status against discharge.

The Supreme Court majority in Nassar discussed such a scenario in crafting a tougher proof standard for retaliation claims, she said.

The EEOC should give “detailed instructions” to its field staff about how to evaluate retaliation charges in light of Nassar and to require corroborating evidence of the charging party's allegations before advancing such claims, Buesing said.

The EEOC should require “more than a vague complaint” of bias before finding probable cause for retaliation, she said. In particular, the EEOC should ask if an employer was aware of the employee's performance and conduct issues before the bias complaint was filed and if the employee gave the employer an opportunity to investigate the alleged bias and take corrective action before filing a retaliation charge, Buesing said.

Banks said she “respectfully” disagreed with Buesing's suggestion that many “frivolous and false” retaliation claims are being filed.

Rather, Banks said she is “hard pressed” to recall even one case in her own experience when retaliation was asserted solely to protect an under-achieving employee from termination. “It's the exception, not the rule,” she said.

Federal Sector Numbers Dissected 

EEOC Member Constance Barker (R) asked why both the rate of retaliation complaints and EEOC findings of retaliation are substantially higher in the federal sector than in private employment.

The agency finds probable cause to determine retaliation has occurred in 2.9 percent of its private sector charges, but the EEOC's Brooks said the agency finds federal sector discrimination has occurred in 4 percent to 6 percent of complaints. Of those federal sector discrimination findings, 42 percent are findings of retaliation, Brooks said.

Retaliation has been the “top basis” of discrimination in the federal sector since 2008, Brooks said. A partial explanation might be federal employees are “well aware of their rights” in the wake of multiple laws and regulations specifically addressing federal sector retaliation over the past 15 years, he said.

Emphasizing the federal government is a “multi-faceted organization” with many different types of workers, Brooks said the EEOC currently is developing data on the “worst offenders” among federal agencies regarding retaliation. The EEOC is “trying to pinpoint” what types of organizations might be most susceptible to retaliation, Brooks said. He promised to provide the final data to Barker and her fellow commissioners.

EEOC trial attorney Anica Jones discussed EEOC v. New Breed Logistics, 126 FEP Cases 1403 (6th Cir. 2015), in which the U.S. Court of Appeals for the Sixth Circuit affirmed a $1.5 million jury verdict for four warehouse workers who alleged sexual harassment and retaliation.

The EEOC’s case established new precedent that a worker’s complaints to a supervisor to cease harassing conduct constitute protected activity under Title VII. Jacqueline Hines, one of the four former New Breed workers, described the harassment and retaliation she experienced. Hines said she hopes telling her story will “help to prevent harassment and retaliation of other individuals in the future.”

The “takeaways” from New Breed Logistics include that harassment and retaliation are “avoidable” if managers receive proper training, Jones said. Temporary workers also are at greater risk both because they are perceived as expendable and because they are more likely not to receive any EEO training from the staffing agency or the assigned employer, she said.

Trouble in Fields 

Advocates for migrant and immigrant workers would like to see an EEOC “rapid response” team to prevent such workers from being deported or further harmed while their harassment or retaliation charges are pending, Werner of the Southern Poverty Law Center said.

They also would like to see growers depend less on labor contractors, Werner said. The “worst” harassment occurs when “multiple layers” exist between the grower and individual workers, he said. Growers should hire workers directly and not rely on the labor contractor system, which has a “history of widespread abuse,” Werner said.

Blacklisting of workers who complain is a particularly harmful form of retaliation because a contractor can bar a targeted worker from employment with hundreds or even thousands of potential employers, Werner said. The threat of blacklisting alone can be enough to silence workers who experience harassment and discrimination, he said.

Guest workers holding employer-sponsored visas are particularly vulnerable to retaliation because they lack “portability” in the job market, Werner said. Termination of employment effectively means revocation of their visa and right to remain in the U.S., he said.

Workplace ‘Culture' Is Key 

The “single most important” element in determining whether retaliation occurs is “the culture of the organization,” said Sharon L. Sellers, president of SLS Consulting in Santee, S.C., and a leader of the Society for Human Resource Management's South Carolina chapter.

An employer's “best practices” for avoiding retaliation include a reporting system for bias complaints with multiple options, effective employee training that includes separate training of managers and supervisors and “clear and consistent documentation procedures” that dispel the “perception of discrimination” in performance appraisals, Sellers said.

On the other hand, some employers, especially smaller companies, see retaliation as “good business” because the employer rids itself of a “troublemaker,” said Banks, the plaintiffs' attorney.

What are effective strategies to change an organization's culture to stop or prevent retaliation, Yang asked.

Sellers replied that in consulting with employers, she uses the available literature, case studies and company track records to show that more diverse companies where employees are “free to speak out” also are the most successful.

One effective strategy to prevent retaliation has to be the employer speaking directly with the individual who is charged with discriminating, Banks said. The employer should acknowledge that individual's probable reaction of anger but reiterate no retaliation against the charging party is permitted, she said.

Effective Training Techniques 

Employers' anti-retaliation efforts “typically take the form of training,” but it's hard to say if it's effective, Banks said. In general, she said she would recommend in-person training over online instruction. Both employers and employees need training regarding retaliation, she added.

In the federal sector, the EEOC suggests “embedding” anti-retaliation training into other training that's “organic” to the particular agency involved, Brooks said. For example, anti-retaliation training can be included in general conflict resolution training, he said.

From the employer's perspective, Buesing said she recommends training specifically on retaliation as part of the instruction on how to recognize and respond to discrimination complaints.

There's a “dire need” for training among employers that use immigrant and migrant workers, as typically no anti-retaliation training now takes place in such environments, Werner said.

In questioning Sellers, Lipnic said many employers have conducted diversity training for at least 20 years, but there still seems to be difficulty with the “respect” component.

The first part of her training program discusses “mutual respect” in the workplace, Sellers replied. It's true some employers just “want to check the box” that they conducted training, showing the same film year after year, for example, Sellers said. But employers need to do ‘customized training” that focuses on what incidents actually occur at their type of workplace, she said. Participatory training that may include role-playing also is better than purely passive instruction, Sellers said.

Asked by Lipnic if training could have prevented the supervisor's harassment in New Breed Logistics, former employee Hines replied “no,” adding “I think it was just his personality.”

Training “tailored” to a particular employer's “personality” is preferable, and getting the company's owners and top executives to “buy in” is crucial, Buesing said. Stories about a company's potential legal “exposure” to damages for harassment or retaliation usually are a “very effective” way to ensure management attention, she said.

While “tailored training” is important, harassers usually seem to be “recidivist” offenders, said Banks, the plaintiffs' attorney. “More effective discipline” has to be imposed against such harassers to “clean up” an employer's workplace culture, she said.

Most employers are “trying to do the right thing” and generally are “focused on being productive,” Buesing said. Particularly with smaller employers, there is less focus on human resources issues and no exit interviews are conducted, she said.

Pay Secrecy Rules Discussed

Employer rules that punish employees for discussing their pay with co-workers may be a form of retaliation prohibited by Title VII, said EEOC Commissioner Charlotte Burrows (D), the panel's newest member.

“Strong anti-retaliation protection is the key to civil rights enforcement,” said Burrows, who helped to organize the public meeting on retaliation.

Although some companies used to include prohibitions on pay discussions in their employee handbooks, almost no “informed employers” do so now, Buesing said.

SHRM also endorses the concept that employer policies that prohibit or discourage employees from discussing their pay violate the National Labor Relations Act, Sellers said.

The witnesses differed over whether a policy of discouraging employee pay discussions would violate Title VII, but all agreed such a ban would violate Section 7 of the NLRA because it affects “concerted activities” related to conditions of employment.

President Barack Obama last year issued an executive order prohibiting federal contractors from retaliating against employees who discuss their pay, thereby reaching some 26 million U.S. employers that hold federal contracts, Burrows said.

Since the EEOC is responsible for enforcing the Equal Pay Act as well as addressing sex or race discrimination in pay under Title VII, it would seem that retaliation for breaching an employer rule against pay discussions would also violate Title VII, Banks said.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com