What is the number one equal employment opportunity (EEO) claim filed against Texas employers? Contrary to what you might think, it is not discrimination based on race, sex, disability, age, national origin, genetic information, or religion. Nor is it sexual harassment or equal pay. According to the EEOC’s 2011 statistics, it is retaliation.
Retaliation happens when an employer takes an adverse action, such as termination or demotion, against an employee or the employee’s loved one because the employee reported a violation of equal employment laws. According to EEOC statistics, in 2011, retaliation claims made up 10.9% of the claims filed nationwide. In Texas, retaliation claims made up a whopping 41% of claims filed.
How can Texas employers manage the risk? Here are four tips:
1. If you have more than 15 employees, consider purchasing EPLI.
Employment practices liability insurance (EPLI) protects employers from liability associated with alleged wrongful employment acts. The cost of EPLI is usually infintessimally smaller than defending your business in a lawsuit. Therefore, if your business is subject to EEO laws, i.e., if your business has more than 15 employees, it often makes sense to purchase EPLI.
2. Have an anti-retaliation policy in place.
If your business does not have an anti-retaliation policy in place, by all means adopt one. But don’t stop there. Show your employees how important it is. Give them a hard copy. Have them sign that they received it. Make it available electronically. Educate your new employees about it and remind your existing employees about it through regular training. Don’t have the time to put together the training? Most employers don’t. Hire an attorney or an outside firm to do it. Trust me, it will be money well spent.
3. Make sure the policy is current.
If your business already has an anti-retaliation policy in place, make sure it is current and complies with recent changes to retaliation law. For example, in 2011, the United States Supreme Court held an employer’s firing of the fiance of an employee who had complained of discrimination may have constituted illegal retaliation against the complaining employee. Employers’ retaliation policies, therefore, should be revised to indicate that the employer will not retaliate against an employee who complains about discrimination or the employee’s loved ones.
4. When an employee complains about discrimination, do something.
When an employee complains about discrimination, do something. Do not try to sweep it under the rug by ignoring the complaint or trying to talk the employee out of his feelings. As in any relationship (how do you feel when your spouse or significant other ignores your complaint or tells you that you are overreacting?), that is a recipe for disaster. Instead, do something. First, listen to the employee. Suspend all judgment and listen. Repeat back to the employee what you’ve heard to make sure you’ve heard him accurately. Then, tell the employee that you take his complaint seriously and will investigate it. Next, investigate the complaint. Give every employee who participates in the investigation, including the complaining employee, a reminder copy of the anti-retaliation policy and have them sign that they have received it. Do not tell employees that they may not discuss the investigation with other employees, as that may violate the National Labor Relations Act (NLRA). Finally, take some action in response to the complaint, even if it is just requiring employees to participate in additional training. When employees feel heard and that some action is being taken in response to their complaint, they are much less likely to bring an EEOC claim.