This time each year, the U.S. Equal Employment Opportunity Commission (EEOC) releases a comprehensive breakdown concerning the number and types of employment-related charges that have been filed in the prior year.

For fiscal year 2014, the EEOC just recently reported that a total of 88,778 charges of workplace discrimination were received by the EEOC. From an employer's perspective, one of the most concerning aspects of this breakdown, detailed in full below, is that the percentage of EEOC charges that included claims of retaliation reached a whopping all-time high of 42.8%. Thus, as it stands, EEOC filings of retaliation-only, or tandem discrimination/retaliation charges, are occurring now more than ever.

The 88,778 charges were comprised of the following allegations, set forth in descending order: 

• Retaliation under all statutes: 37,955 (42.8 % of all charges filed)
• Race: 31,073 (35 % of all charges filed)
• Sex: 26,027 (29.3 % of all charges filed)
• Disability: 25,369 (28.6 % of all charges filed)
• Age: 20,588 (23.2 % of all charges filed)
• National Origin: 9,579 (10.8 % of all charges filed)
• Religion: 3,549 (4.0 % of all charges filed)
• Color: 2,756 (3.1 % of all charges filed)
• Equal Pay Act: 938 (1.1 % of all charges filed)
• Genetic Information Non-Discrimination Act: 333 (0.4 % of all charges filed)

Note that the percentages add up to more than 100% because some charges alleged multiple categories of discrimination (i.e., race, disability, and religion) and retaliation.

The above statistics reveal a significant development in the arena of employment law.  Even though retaliation and discrimination are two separate claims with distinct causation standards, some employees are finding cause and reason to allege both claims arising out of their dealings with their employer.  From a risk management standpoint, this raises some important questions: How effective is the quality of management training with regard to retaliation prevention? Is that training supported by an equal emphasis to the training placed on discrimination/harassment prevention? Do employers know how to properly manage the risks for potential retaliation claims when employees have engaged in protected activity?

It is clear that the rising trend of retaliation claims signals the need for an employer to closely examine its practices to ensure that proper protocols are in place to reduce vulnerability to retaliation claims.  Such practices include making sure that a clear and concise non-retaliation policy is in effect, and that sufficient training is offered to discuss that policy and its enforcement in the workplace.  Moreover, an employer should consider mandating periodic follow-up meetings with managers and supervisors to reiterate the significance of workplace policies regarding retaliation.  Concurrently, the need to document all employee performance evaluations, disciplinary incidents, and corrective actions is fundamentally necessary if not for any other reason, but to later demonstrate that the employer's practices were objective and not at all influenced by an employee's complaint about the workplace or other protected activity.  

Retaliation claims present themselves in a variety of different ways. One common claim alleges that the employee was retaliated against for bringing forth a good faith complaint about discrimination, harassment or other unlawful employment practices in the workplace.  Another common claim involves an employee alleging that he/she was retaliated against for taking legally protected time off for any number of reasons (including but not limited to time off under the Family Medical Leave Act,  California Family Rights Act, disability accommodation laws, pregnancy leave, etc.).

Employer actions that may amount to unlawful retaliation include a broad spectrum of activity, including termination, demotion, change in job duties or reporting structure, or any combination of behavior that would have the purpose and effect of deterring an employee from engaging in protected activity.

Retaliation claims are becoming more attractive to would-be-plaintiffs and their lawyers, in part because they are easier to establish. That's because the law does not require an employee to prove that the underlying discrimination, harassment, or other purported unlawful conduct  actually occurred.  Rather, the employee is only required to establish (as one prong of a retaliation claim) that he or she made a good faith complaint about such conduct, or otherwise engaged in protected activity.  

Toward that end, employers should try to encourage open and transparent discussions in the workplace, in an effort  to foster a more positive working environment.  It is important to remember the ultimate goal - that is, to proactively avoid future legal disputes and diminish the chances of your organization becoming part of the EEOC family of statistics.

Knowledge of where liabilities lie could be your strongest tool in cost effective litigation avoidance.  If you have any questions about the matters discussed in this article, or wish to discuss preventative anti-retaliation training and risk management options, please contact any member of our Firm.  We can be reached at (818) 508-3700, or online at www.brgslaw.com.