The EEOC recently released information on the number and types of charges handled. http://www1.eeoc.gov/eeoc/statistics/enforcement/state_14.cfm Not surprisingly, retaliation charges constituted nearly 43 percent of all EEOC charges. You might ask why that number is so high.
In my opinion, retaliation charges are high because they are so easy to make. Unlike other claims, an employee is not required to prove actual harassment or discrimination. All that must be alleged is that the employee complained about possible discrimination or harassment and thereafter suffered adverse action.
Consider for a moment the following hypothetical: Worker Wanda has been performing poorly and her Manager Mark has criticized her for it. After a period of time, Wanda realizes she probably will never satisfy Mark and she will probably be fired. So she calls Heather in HR and says something like this: Mark is creating a hostile work environment for me. He harasses me, treats me differently than other workers, and sometimes he even leers at me. Once I caught him staring at my backside as I walked away from one of his hostile tirades. She contends the harassment is making her ill, and she has seen her doctor about it.
Heather investigates and concludes there is no evidence of discrimination or harassment. Yes, Mark has been harping on Wanda, but it is because she is not doing the job.
Within a few weeks Wanda loses her job. She files for unemployment and she visits the EEOC office claiming harassment, discrimination and retaliation.
Wanda has a viable claim. She complained about potentially unlawful behavior and within weeks was fired. Wanda is not required to show that her claim had merit. Rather, it is the timing that creates the claim.
The company has a viable defense. Wanda’s performance was not satisfactory. She was warned, trained and disciplined. Nothing worked. The company had to let her go.
A claim, regardless of merit, costs money. When the claim is litigated, that cost escalates. And the problem with employment claims is that they always bring with them the potential that the defendant will be forced to the employee’s lawyer. In a way, it’s legal extortion. Lawyers like these types of cases because if they win, they recover their fees. Retaliation claims are particularly attractive because there is no need to prove actual discrimination or harassment. What a racket!
So what is an employer to do? Remember, problem employees never get better. If you have a problem employee, consider firing the employee before (s)he claims a manager has harassed her by creating a hostile work environment. What if you have waited too long? Make sure that performance, as well as discipline, is properly documented. Consider taking more time before termination of the employment relationship. And get your lawyer involved to help analyze the risks.