Here at the law firm of LiLaw Inc. in Los Altos, attorney J. James Li, J.D., Ph.D., advises employers and employees about illegal employment discrimination and harassment like that based on gender, race, age, disability, religion and other protected employee characteristics. An important component of anti-discrimination law is that it is also unlawful to retaliate against an employee who reports an incident or practice of workplace discrimination or harassment, or who cooperates in a discrimination investigation or lawsuit such as in the capacity of a witness.
In his representation of employers of all types and sizes, Dr. Li counsels businesses and business owners about how to use training of employees, supervisors and managers as a tool to prevent retaliation claims under federal or California employment laws.
The U.S. Equal Employment Opportunity Commission or EEOC issued an important and detailed guidance document that contains suggestions for employer-provided training against retaliation. The EEOC says that the percentage of charges that allege retaliation reported to the agency has “doubled since 1998” and is now the most frequent kind of discrimination claim.
What is retaliation?
Retaliation is a “materially adverse action” against an employee or job applicant who engaged in a “protected activity” under anti-discrimination laws. Retaliation can include termination, failure to hire, demotion, failure to promote, failure to provide benefits, wages or perks similar to others in the same position, and a wide range of other negative acts.
Training as a prevention tool
In addition to having a clearly written, detailed anti-retaliation policy, the EEOC encourages the use of training to reduce the chances of supervisors, human resources personnel or managers engaging in illegal retaliation. Here are some of the included suggestions for anti-retaliation training:
- Everyone at all levels should be specifically trained on the written anti-retaliation policy. This allows people not only to know what behavior is protected, but also what retaliatory actions in response are illegal.
- Use different formats to convey the policy.
- Be sure “top management” communicates that retaliation “will not be tolerated.”
- Provide follow-up trainings on an ongoing basis.
- Emphasize policies, laws and practices that have been problematic in the past in that workplace.
- Provide concrete examples of appropriate employer responses to an employee who engages in legal, protected behavior related to discrimination allegations or concerns.
- Provide management examples of appropriate, legal “discipline and performance evaluations.”
- Discuss the kinds of emotions likely for supervisors and managers in these situations and how to deal appropriately with them.
Importantly, the last suggestion is to “[c]onsider overall efforts to encourage a respectful workplace, which some social scientists have suggested may help curb retaliatory behavior.”
An experienced employment lawyer can advise a business owner about his or her responsibilities to prevent retaliation against those exercising their rights to object to perceived discrimination or harassment.