The number of Harassment related retaliation claims being filed with the EEOC is continuing to increase year after year.  And since retaliation judgments can be awarded punitive damages, these can be very costly claims.  Last week the EEOC released new guidance on the definitions and applications of retaliation in the workplace, and one strong protection step that employers can take jumped out at me right away, so of course I thought I should share it with you.

The EEOC Enforcement Guidance on Retaliation and Related Issues states that, “Retaliation cannot be shown without establishing that the decision-maker—or someone who influenced the decision-maker—knew of any protected complaint activity. Absent knowledge, there can be no retaliatory intent, and therefore no causal connection.”

Many of you who are familiar with my investigation trainings know that I always suggest (very strongly), that a Decision Maker be selected as a part of the investigation plan, so that corrective and preventive actions are chosen based on an unbiased look at the outcome of the investigation, and therefore avoid connections that can be construed as retaliatory.

Example: An employee works in a department in which she is the only female employee. She complains to the HR Director that her Manager treats her differently than the others in the department, often talking down to her like she is not capable, and using insulting and abusive language. She mentions that this has been going on for too long and that she believes HR has been aware of this, so she has contacted the EEOC. HR conducts an investigation, therefore HR is very aware of the interactions inside the department and the Manager has received a written warning. The following week, the Manager approaches the HR Director and says that the employee has been unmanageable since the investigation. She is rude to other employees, will not talk to her manager and her outbursts are creating a hostile work environment. The HR Director then conducts a new investigation. Here’s where it gets tricky. If the conclusion is that the employee is creating a hostile work environment, which would usually be grounds for termination, having the HR Director make that decision is risky. The HR Director is already aware that the employee has been working with the EEOC on the original claim and therefore making the termination decision could be deemed as a retaliatory measure.

Here’s the good news……If the HR Director provides the complete investigation report to a Decision Maker (generally a VP or CEO), and based only on the investigation, the Decision Maker determines that this is a terminable offense, this would not be deemed retaliation according to the EEOC guidance. YEAH!

In case you didn’t know, the InvestiPro online investigation platform has a decision maker role built in as part of the protections for employers. Need to investigate?!