In looking at the current EEOC charge statistics, it is easy to see what is happening…the retaliation charges–across the board–are up considerably. And, in talking with my clients and HR professionals, it seems that retaliation claims are the latest trend. Employees are very quick to say, “I’m being retaliated against because of (insert protected class: race, color, gender, religion, national origin, etc.).
So, how do you minimize the risk of getting a claim? The first step is doing good, investigation case management. What I mean by case management is having at least a simple database program that houses all your investigation data in one, central place. This will enable investigators to look back at previous allegations to determine if you have a serial “I’m being retaliated against” employee. Not that this will necessarily insulate you from a claim being filed…but rather the evidence of an employee having made numerous claims in the past can point to credibility problems for a current or future claim.
Now, I don’t want to present a picture that if an employee has complained in the past of retaliation that he/she wasn’t legitimate. Each claim the employee made could very well have been legitimate. The point is in having your investigative data in one central place, so you can clearly look back on cases to determine the details, who the key players were, how long ago the case took place, and if there is a causal connection between the employee’s previous involvement in an investigation and the current claim of retaliation.
In addition to good case management, the other aspect is in training your managers on how to “check their attitude” in how they deal with employees who have made complaints. Having started my career in operations management, I understand how sometimes (particularly ops managers) can take an employee’s complaint very personally. However, in the current litigious environment we are in, managers must learn to maintain a neutral position in dealings with an employee who has complained of harassment, discrimination, or any other potentially illegal activities, and then engaged in a protected activity. A protected activity could be an employee, lets call him “Fred”, who marches into HR to “complain about my manager” and how “he harasses me…”. If there is a valid issue, Fred’s complaining internally to HR means that he has engaged in a protected activity. Because he brought forth a complaint of something potentially illegal, he gets into what I refer to as the “protected activity bubble” of protection from retaliation. Therefore, if a manager were to start treating Fred differently, such as changing his work shift to something undesirable, changing his duties and work assignments to more arduous “grungy” duties, or began excluding him from team huddles/meetings, these actions could be deemed as retaliatory.
So, bottom line…the way to minimize retaliation claims in HR investigations is to make sure supervisors and managers get some education on what protected activities are, how they are supposed to behave before, during, and after investigations take place. And, that they must put their personal feelings of wanting to “get even” aside. The reason is that these negative emotions often drive very bad behavior…that lead to claims of retaliation.
Always remember…the best investigation is the one you never have to do.
Until next time…
Natalie Ivey, MBA, SPHR, SHRM-SCP
President & CEO
Results Performance Consulting, Inc.