Wednesday, June 23, 2010

Management Should Undertake Whatever Measures to Ensure No Retaliation

According to the EEOC, an employer should make clear that it will not tolerate adverse treatment of employees because they report harassment or provide information related to such complaints. An anti-harassment policy and complaint procedure will not be effective without such an assurance.

Management should undertake whatever measures are necessary to ensure that retaliation does not occur. For example, when management investigates a complaint of harassment, the official who interviews the parties and witnesses should remind these individuals about the prohibition against retaliation.

Management also should scrutinize employment decisions affecting the complainant and witnesses during and after the investigation to ensure that such decisions are not based on retaliatory motives.

So, if you have reported harassment or some other form of illegal misconduct, the onus is on your employer to ensure that you are not subjected to retaliation because you’ve spoken up about mistreatment. This means that management should warn those you are making complaints about, as well as other staff being interviewed as material witnesses, that you are not to be targeted in any way shape or form for making a complaint. Your employer’s anti-harassment and anti-retaliation policies should be sent in reminder emails to ALL STAFF—periodically—but, particularly after an incident of potential harassment has been reported.

Your employer should not name you or call you out in any communication being sent to all staff. Employees that are serving as witnesses should be warned not to repeat anything that is discussed during an investigation of harassment. Steps should be taken to shut down the rumor mill—before it gets started!

If an employee has made a complaint of harassment and someone with authority to recommend employment actions makes a sudden recommendation to suspend or to demote or to fire, etc. that employee, the employer should automatically question the employment recommendation to determine if the motivation is legitimate or simply a pretext to fire the employee for making a complaint. Employers should not simply take the word of a supervisor, etc., when they are aware that the supervisor is recommending action that could be intentionally retaliatory, may be meant to scare the employee out of opposing illegal mistreatment, and may be meant to intimidate other employees in order to prevent them from opposing illegal mistreatment or from participating in an investigation against the company.

Employers can’t claim deniability by blaming a supervisor for taking action against an employee as though the supervisor were a rogue employee of the company. Supervisors rely on the authority given to them by management and can’t execute a vendetta or any adverse actions without cooperation or intentional ignorance from higher up within the company. The law will not diminish the responsibility of employers to examine all employment actions, particularly against employees that have opposed mistreatment.


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