EEOC retaliation claims spring from unlikely places

by on May 12, 2009 · 0 Comment POSTED IN: HR Info Center

Post-Crawford, EEOC retaliation charges are now easier to prove

Baseless EEOC Discrimination Charge
There was a woman who worked – still worked for the organization and she filed an EEOC discrimination charge. And the crux of her charge was she has been discriminated against based on her race. And she said because she was passed up for promotion is what happened.

Now, never mind that she never applied for a promotion, nor had there ever been any promotion to apply for. So the EEOC issued a “no action” letter, meaning you all don’t have to do anything. And the company did not share the fact that the woman had filed a charge with the woman’s manager. And this was a situation where there was no need to do an investigation. So there was no need to share that information with her manager.

The employee’s basis for an EEOC retaliation charge didn’t exist
Well, a few weeks later, she received a performance review pointing out some weaknesses in her performances. When she ultimately sued — because of course you know that she would sue — she claimed and filed an EEOC retaliation charge. The way she was retaliated against was that she got a bad performance review.

It was found that that was a pretty tough claim for her to make when the managers didn’t know about the original charge. So, please, please, please pay attention to retaliation. Things take a long time. They can get frustrating but it’s very important because it’s the number one reason people are suing these days or if not the number one, then quite high on people’s list is EEOC retaliation claims.

Who do you need to tell about this EEOC retaliation charge?
Well, for one thing you need to tell your company lawyer. Your general counsel will definitely want to be on notice. It’s likely that they will issue a litigation hold notice which tells people they can’t destroy certain documents.

You really want to keep it limited to only those people who have a need to know of the situation. And that may differ depending on whether or not the individual is an applicant, an employee, or a former employee.

If you have Employment Practices Liability Insurance or other insurance that might cover such a claim, you’re going to want to notify your insurance company as well.

And who you notify may differ depending on what action the EEOC is asking of you. For example, if you are going to be writing a position statement you probably will have to involve the manager because of course you’re going to have to be getting facts to put in that position statement. So, again, limited to only those who need to know.
Edited remarks from the Rapid Learning Institute webinar: “In EEOC’s Crosshairs? How to Prepare an Airtight Response and Avoid Costly Payouts” by Alyssa T. Senzel on February 04, 2009

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