Steven E. Springer
RETALIATION COMPLAINTS AGAINST EMPLOYERS EXCEED DISCRIMINATION COMPLAINTS
In 2011 the Supreme Court found that the anti-retaliation provision in Title VII covered a wide range of employer conduct. Recent retaliation complaints received by the EEOC have replaced racial discrimination as the most common complaint.
Title VII can be utilized by individuals, other than the employee who was subject to the alleged employer conduct, who are harmed by the alleged employer conduct. For this reason employers must exercise caution in the termination of any employee who has complained about another employee being harassed at work.
Employers should consider placing individuals who claim to have witnessed alleged workplace discrimination of another employee on a terminate with caution list. Employees on the terminate with caution list should only be considered for termination if there is a strong and easy to articulate reason for termination. Employers should assume that the termination of any employee on the terminate with caution list will be heavily scrutinized. Employers should also be cautious of making changes to the employee’s work environment or work schedule as these changes may be perceived as adverse (punishment) because the employee reported the alleged discrimination. Without a central terminate with caution list, employers may unknowingly terminate an employee who’s conduct warrants termination, without knowing that the employee should be given extra consideration against termination, even when termination is warranted.
Lastly, employers should not institute any changes to the work arrangements of the witness’ family members or friends who work for the employer, unless their is an easily justifiable reason to do so. These individuals may claim that they are being adversely effected in order to retaliate against the harmed employee or witness to the alleged harm.
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