If you’re accused of discrimination, for goodness sake don’t make it worse by retaliating against the accuser.
That’s the lesson from the EEOC’s newly released statistics on charges filed with the agency for fiscal year 2012.
Steady rise in charges
Carrying on a trend that dates back a decade, retaliation charges continued their steady rise in comparison with various discrimination charges.
In 2012, 37,836 retaliation charges were filed with the EEOC. Retaliation came to 38.1% of all the charges, including sex, race, disability, age and other kinds of discrimination. By contrast, in 2002 retaliation accounted for only 27% of all charges.
In 2012, race discrimination accounted for 33.7% of charges, sex discrimination 30.5%, disability discrimination 26.5% and age discrimination 23%.
Lawyers lie in wait
Good managers aren’t going to retaliate on purpose against employees for exercising their legal rights to complain of discrimination or engage in other protected activity — like taking FMLA leave.
But even good managers may do things that disgruntled employees and their lawyers can later present as retaliatory.
What plaintiffs’ attorneys are looking for is any hint of adverse action, like discipline, that takes place shortly after an employee has engaged in protected activity. The courts call this nearness in time “temporal proximity,” and they often consider it suspect.
Do it now, or later?
If managers take disciplinary action soon — a few days or weeks — after an employee’s protected activity, it may look questionable even if the action was perfectly justified.
So what’s a manager to do?
Depending on the gravity of the disciplinary situation, and in consultation with HR, you may want to document the employee’s behavior and wait for a further instance of misconduct before applying the appropriate discipline. Doing this will likely break the “temporal proximity” link and put you in the clear.
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