Under new Supreme Court rulings, EEOC retaliation cases are easier to prove.
Pay attention and be very sure not to retaliate and warn others not to retaliate. Sometimes people don’t understand the standards for proving EEOC retaliation claim are much easier now than ever. A well meaning manager could think, oh hey, this person’s complained, so, if I just don’t talk to them, then it will be great and we won’t have this problem anymore.
The reality is, sometimes not talking to someone is itself, a form of retaliation under EEOC guidelines. This person isn’t invited to meetings anymore. They’re not on conference calls. So, if business as usual is the standard, managers need to understand that that is how they have to act. And you yourself have to act that way as well or risk a major EEOC retaliation charge and lawsuit
An example of how to avoid an EEOC retaliation charge
In situation not too long ago, a woman filed an EEOC charge. She worked at the company and the crux of her charge was that she had been discriminated against, based on her race. She said, this was evident because she was passed up for a promotion.
Never mind that she had not applied for a promotion nor has there ever been any promotion to apply for.
The EEOC issued a no action letter. Remember that means, company, you don’t need to anything at this time. And this was a situation where there was no need to do an investigation.
So, the company did not share the charge with the woman’s manager. There was no need to do so. And a few weeks later, the manager gave her a performance review and in this review, it pointed out some weaknesses in her performance.
Ultimately, when she sued, and of course, you knew she would sue, right? She filed an EEOC retaliation charge. Namely, the manager was retaliating against her for filing an EEOC charge. When the manager didn’t even know about the charge, the EEOC retaliation claim became much easier to win. Think about whom you’re going to tell and you want to warn people about EEOC retaliation charges.
Who do you need to tell about EEOC retaliation claims
Inform the company’s in-house lawyer, if there is one, because a general counsel is definitely going to be on notice. You want to inform — if you work with outside counsel, who, typically, advises you on this kind of matter, you probably want to let them know as well.
Basically, you want to let those who need to know the pertinent information, but only those who need to know. This doesn’t have to be a tacked up a notice on the bulletin board. That is not a good way to proceed.
It may differ who you tell depending on whether or not the individual is an applicant, an employee or a former employee and what the charge is. You’ll want to limit it to only those who need to know.
It may also differ depending on what the EEOC is asking of you. In the example, the “no action required” meant that we had to tell a lot fewer people than if we had to investigate the matter.
The other thing and this is an important one is, if you have insurance, employment practices liability insurance or other insurance that might cover this. You want to let the insurance company know when you get a charge, because sometimes they require that they know at that time in order to cover the charge or cover a lawsuit down the road.
These are the edited remarks from the Rapid Learning Institute webinar “EEOC Charges: How to Prepare an Airtight Response and Avoid Costly Payouts” by Alyssa Senzel, Esq. on Feb. 14, 2007
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