As a result of the #MeToo Movement, more victims of sexual assault are coming forward with claims against their alleged harassers. In fact, the EEOC reported that EEOC discrimination charges alleging sexual harassment increased more than 12% from 2017 to 2018. It is clear the movement is encouraging workers who are experiencing harassment to come forward without fear of negative consequences. But, data shows many people are experiencing retaliation for speaking up. According to the EEOC, more than two-thirds of workers who filed sexual harassment complaints with the EEOC, say they have suffered retaliation.
So, What Is Retaliation?
Retaliation includes punishing job applicants or employees for asserting their rights to be free from employment discrimination, including harassment. According to the EEOC, asserting these rights is called “protected activity.” Protected activity takes many forms. For example, protected activity makes it unlawful to retaliate against applicants or employees for: (i) communicating with a supervisor or manager about harassment; (ii) answering questions during an employer investigation or alleged harassment; or (iii) resisting sexual advances or intervening to protect others. Employers are prohibited from responding to protected activity in a way that discourages someone from complaining or reporting harassment. The following activities—in response to an employee’s protected activity—could be considered retaliation depending on the circumstances:
- Reprimanding an employee or giving an employee a performance evaluation that is lower than it should be;
- Transferring an employee to a less desirable position;
- Verbally or physically abusing an employee;
- Threatening an employee;
- Increased scrutiny towards an employee;
- Spreading false rumors; or
- Making an employee’s work environment more difficult or uncomfortable.
It is important that employers respect and consider all allegations of workplace harassment and retaliation. This means investigating all claims and seeking legal advice when necessary. This requires owners and their managers to be consistent and demonstrate a commitment to maintaining an environment that does not tolerate harassment. By allocating sufficient resources to teach and train employees on harassment prevention, employers are better prepared to respond to harassment claims.
Guidance for Employers
Due to the increase in harassment and retaliation claims, employers must be prepared, now more than ever, when it comes to their response to and prevention of such claims in the workplace. It is important for employers to become familiar with the law so they can identify signs of harassment or retaliation. Employers should also consider having their team members, including managers, participate in anti-harassment training and emphasize that they cannot retaliate against workers with claims of harassment or retaliation. It is important that employers also adopt and implement anti-harassment policies and continually educate their staff regarding these policies.
Nardone Limited Comment: For more information on preventing sexual harassment claims, see our prior blog.
Contact Nardone Limited
The attorneys at Nardone Limited recommend that businesses participate in and sponsor yearly discriminatory harassment training for their staff, especially for their management teams. If you need assistance regarding anti-harassment training, or guidance responding to a harassment or retaliation claim, contact us today.
For more information on the statistics references above, see the EEOC article, “What You Should Know: EEOC Leads the Way in Preventing Workplace Harassment.”