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Avoiding Retaliation

One important aspect of a company's effort to reduce harassment is its openness to receiving all complaints about harassing behaviors. Employees must feel comfortable making use of the complaint procedures available to them if they should ever feel they are being harassed. This allows the company to receive complaints and act on them before the problem escalates further. In order for this to work, employees must feel confident that they will not suffer any negative consequences for making a complaint.

Retaliation as defined by the EEOC

According to the EEOC, retaliation occurs when an employer takes an adverse action against a covered individual because that individual is engaged in a protected activity. Let's consider the three key points in that definition in reverse order.

First, there are three "protected activities:" opposing harassment, participating in a harassment investigation, and requesting reasonable accommodation.

Opposing harassment includes the action of making a harassment complaint. It also covers refusing to obey an order reasonably believed to require the employee to engage in harassment. The second protected activity – participating in a harassment investigation – includes serving as a witness in an investigation or court proceeding. Third, requesting a reasonable accommodation based on such protected characteristics as religion or disability is a protected activity. Retaliation in response to any of these three kinds of activities is against the law.

The next key term in the EEOC definition is "covered individuals." These are people who have engaged in any of these protected activities: opposed harassment, participated in investigations, or requested reasonable accommodations based on such characteristics as religion or disability. People who are closely associated with someone who has engaged in such protected activities are also covered individuals.

Adverse actions

The final key term in the EEOC definition is "adverse action," which is a negative employment action that would be likely to deter someone from opposing harassment, from participating in a harassment investigation, or from seeking a reasonable accommodation based on a protected characteristic. Adverse actions include involuntary transfer, demotion, termination on the pretext of poor performance, and unjustified negative evaluations or references.

Actions that are not covered as adverse actions include stray negative comments in an otherwise positive or neutral evaluation, or negative comments that are justified by an employee's poor on-the-job performance. Also, employees are not excused from continuing to perform their jobs or following company rules simply because they have made a harassment complaint.

Companies must be open to receiving and addressing harassment complaints. It follows that managers must avoid any form of retaliation that could deter employees from reporting harassment.

Retaliation occurs when employers take adverse actions against employees for complaining about harassment. Adverse actions include such employment decisions as demotion, involuntary transfer, termination, and unjustified negative evaluations.