Retaliation Claims are on the Rise: How to Avoid Them

As reporting on suspected wrongdoing reaches historic highs, 2017 saw a 100 percent increase in retaliation claims. The 2018 Global Business Ethics Survey uncovered this shocking statistic. Driving the higher numbers are social and demographic trends, along with expanded employment laws at the state and federal levels that provide expanded protection of employees against retaliation.

The onus to prevent it, under U.S. Equal Employment Opportunity Commission (EEOC) regulations, is squarely upon the employer, making it illegal to fire, demote, harass or otherwise retaliate for these reasons against either job applicants or employees. Retaliation can be stealthy and difficult to catch, so employers must be diligent and methodical in efforts to prevent it.

There are several critical elements to doing so:

Ensure a robust policy and documentation process is in place.
Policies must be highly defined and regularly communicated to everyone in the organization. And the moment human resources or any member of management hears of a complaint, they must document every single detail—everything contained in the complaint, every action taken by the company, and every conversation had with other employees.

Maintain confidentiality while investigating and resolving a complaint.
The more members of the organization who are brought into the discussion, the more likely it becomes that someone will make a comment or take an action that could be construed as retaliation. Limit the players to those immediately involved, and stress strict confidentiality to each.

Work with both sides of the complaint.
Emotions run very high when misconduct is reported. When an employee files a complaint, take it seriously and with discretion, treat them with respect, and let them know the organization will not abide retaliatory behavior. At the same time, realize the employee against whom the complaint is filed will probably be quite upset and defensive. Remind him or her of what constitutes retaliation and its potential consequences for the company.

Training is imperative.
In recent years, legal developments have significantly broadened the scope of anti-retaliation protection and lowered the burden for establishing unlawful behavior. This has given rise to the spike in retaliation claims and has made them much more difficult to defend. It is critical to educate managers and supervisors.

Syntrio’s 45-minute course, Preventing Unlawful Retaliation, discusses the protections afforded to employees under various employment laws. Using scenarios and case studies, the course discusses the types of work-related activities that are protected by law, the types of behavior that can lead to a charge, and the risks of failing to take steps to prevent unlawful retaliation in the workplace.

 

Syntrio is a leader in the human resources and employment law fields (as well as ethics and compliance) and is prepared to help your company implement a compliance program aimed at reducing the potential impact of harassment, discrimination and other employment law issues your organization may face. Syntrio takes an innovative philosophy towards employment law training program design and strives to engineer engaging, entertaining, and thought-provoking content.


Contact www.syntrio.com for more information about our discrimination, harassment, and prevention of retaliation online courses and remember to follow us on Facebook, TwitterGoogle Plus and LinkedIn for daily updates on corporate compliance that impact your company.


 

Building an Ethical Culture: the Basics

Even within the same industry, organizations can have radically different cultures. There are norms, both tacit and explicit, that address how colleagues interact, how management communicates with employees, and how customers are treated. In terms of ethics, some companies pay lip service to ethical behavior, while others walk the walk.

For long-term success and to attract the best talent, those with a truly ethical culture are the winners.

So how can organizations build a resilient yet flexible culture that values ethics throughout its ranks? First, it’s important to establish and communicate what behaviors are constructive and to be encouraged, and which others undermine an ethical mission. Companies that take the time to ask all employees what specifically works and what is clearly unethical within their respective roles can develop a clear set of guidelines that can be communicated across numerous channels.

The tone at the top also matters a great deal. Employees follow the lead not just of their immediate managers, but look to senior leadership for cues on how to behave. If a CEO demonstrates unimpeachable integrity in all she says—and more importantly, what she does—that can go a long way in shaping what happens at all levels of the organization.

While it’s a simple truth that reinforcing behavior that is desirable and refraining from reinforcing that which is not, many commercial pressures can work against it. Organizations must be mindful, intentional and articulate about which behaviors they wish to encourage and which they do not. Incentives can range from monetary rewards to accolades and recognition. The important thing is to be clear and consistent in providing thoughtful and corrective feedback that is rooted not in punishment but in education.

If people are going to behave ethically, they need to be given the tools to do so. Having a leader focused exclusively (or almost exclusively) on ethics provides a point person within the organization.

Equally important is appropriate training. Syntrio’s online courses are designed to address the most pressing and broadly applicable business ethics and HR compliance training issues. Each customizable course provides practical guidance on employment laws and other legal and ethical concerns that may arise in the workplace. For a full list of our training options, click here.

Syntrio is a leader in the human resources and employment law fields (as well as ethics and compliance) and is prepared to help your company implement a compliance program aimed at reducing the potential impact of harassment, discrimination and other employment law issues your organization may face. Syntrio takes an innovative philosophy towards employment law training program design and strives to engineer engaging, entertaining, and thought-provoking content.


Contact www.syntrio.com for more information about our discrimination, harassment, and prevention of retaliation online courses and remember to follow us on Facebook, TwitterGoogle Plus and LinkedIn for daily updates on corporate compliance that impact your company.


 

Where We Are Going We Don’t Need Roads

You may have put some thought into the effectiveness (or lack thereof) of your sexual harassment training in recent months. Perhaps the pervasiveness of news articles on the subject has piqued your interest, or [more hopefully] you are genuinely concerned with preventing misconduct in your organization. In either event, you may be thinking about how simple “check the box” training is not getting the job done. If so, you are probably right.

A number of studies in recent years have shown that all methods of compliance training, as most commonly presented, are ineffective.

This means that the lawyer in front of a lectern isn’t working, nor is the simple text-based program you are feeding your employees. At Syntrio we have put a lot of thought and hours into creating more effective training and do so in response to cries from the market for more engaging training.

According to a recent article in Chief Learning Officer, some companies are taking e-learning to the next level of empathy by placing users in a virtual reality environment with victims and harassers all at once. By using 360 video, there is the belief that a more immersed user will be a more engaged user. Although the end result is likely correct, the cost of such a program is obviously sky-high at the moment. Even as virtual reality headsets like Sony’s PlayStation VR drop in price on a near weekly basis, implementing a virtual reality training program at the moment is not cost-effective for most companies.

Syntrio has heard the calls for more engaging training and has listened. We are constantly developing new methods of immersive training that allows the user to position him or herself in the eyes of the victim and harasser alike, so as to connect with the training in a way that simply is not occurring in the marketplace (absent of extremely expensive technology like a virtual reality headset).

We believe the key to successful training lies in the writing.

Users are tired of reading about a random girl named Nicole, with whom they have no connection. We know that e-learning needs to do better, so we have taken the steps necessary to become more engaging and interactive in our sexual harassment training programs. Although you may not be strapping on a headset with 360-degree video in Syntrio’s programs you certainly will come away feeling emotionally connected to the programs in a way you will not with most products on the market. We invite you to contact us to learn more.

Syntrio is a leader in the human resources and employment law fields (as well as ethics and compliance) and is prepared to help your company implement a compliance program aimed at reducing the potential impact of harassment, discrimination and other employment law issues your organization may face. Syntrio takes an innovative philosophy towards employment law training program design and strives to engineer engaging, entertaining, and thought-provoking content.

 


Contact www.syntrio.com for more information about our discrimination, harassment, and prevention of retaliation online courses and remember to follow us on Facebook, TwitterGoogle Plus and LinkedIn for daily updates on corporate compliance that impact your company.


Written by, Jon Gonzalez, Esq., Chief Counsel for Syntrio

 

Pour Over Effect: Wine Bar Hit with Large Harassment Judgment

5th and Wine, a Scottsdale, Arizona wine bar recently faced claims of sexual orientation harassment and retaliation. According to the complaint, the bar did nothing to stop alleged harassment against two servers, which include name calling, inappropriate touching and sexually based comments. Specifically, the two servers alleged that they were harassed based on a perception of their sexual orientation, then were retaliated against for complaining about the harassment.

On March 21, 2018, the United States District Court for the District of Arizona ordered 5th and Wine to pay the servers $100,000 in compensatory and punitive damages following prosecution of the case by the United States Equal Employment Opportunity Commission. The EEOC filed its lawsuit several months ago, and 5th and Wine failed to appear in court, resulting in a default judgment against the wine bar.

The court found that not only did supervisors at 5th and Wine do nothing to prevent the harassment, in many cases they actually participated in the misconduct. As soon as one of the servers alerted the employer that he was planning on filing a complaint with the EEOC, he was immediately fired.

This case presents a growing problem in employment law: small companies with a duty to prevent harassment from occurring actually participating in the misconduct. Many times, particularly in smaller businesses, supervisors, managers, executives and owners are in charge of taking complaints, yet also are the ones engaging in the misconduct. The slippery slope that is created when an employee is fired after making a complaint only exacerbates the problem.

So what to do?

The first step in preventing incidents of misconduct is to become aware that you may have a problem. If you are allowing an environment of jokes and innuendo to continue in your business (whether employees seem to tolerate it or not) you likely have a culture of harassment. Your company needs to take dedicated steps to prevent misconduct and change the culture, followed by a plan of maintenance to ensure a respectful workplace that is encouraging of diversity in thought and ideas. As you can see here, doubling down on intolerance with adverse employment action can lead to a significant penalty. It is likely that 5th and Wine does not have $100,000 to simply “make this go away,” and no business should feel comfortable paying that sum for an inappropriate set of circumstances.

Contact Syntrio to learn more about how we can help your organization best position itself to prevent incidents of harassment in the workplace! 

Syntrio is a leader in the human resources and employment law fields (as well as ethics and compliance), and is prepared to help your company implement a compliance program aimed at reducing the potential impact of harassment, discrimination and other employment law issues your organization may face. Syntrio takes an innovative philosophy towards employment law training program design and strives to engineer engaging, entertaining, and thought-provoking content.

 


Contact www.syntrio.com for more information about our discrimination, harassment, and prevention of retaliation online courses and remember to follow us on Facebook, TwitterGoogle Plus and LinkedIn for daily updates on corporate compliance that impact your company.


Written by, Jon Gonzalez, Esq., Chief Counsel for Syntrio

 

Second Circuit Holds Title VII Prohibits Sexual Orientation Discrimination

On March 1, 2018, the United States Court of Appeals for the Second Circuit held in Zarda v. Altitude Express, Inc. that sexual orientation discrimination violates Title VII of the Civil Rights Act of 1964. This is the second such decision in the last year, with the Seventh Circuit reaching the same conclusion in 2017. The two decisions holding that sexual orientation discrimination is indeed discrimination based on sex are in conflict with an Eleventh Circuit decision reaching the opposite conclusion, and make clear that this issue is ripe for review by the United States Supreme Court.

Although a near-majority of states outlaw sexual orientation discrimination via their state fair-employment laws, under the federal law there is no clear consensus. In recent years there has been a growing trend to bring sex-related issues within the purview of Title VII’s prohibition on discrimination based on sex, and the Equal Employment Opportunity Commission has prosecuted cases wherein plaintiffs were victims of discrimination based on their sexual orientation. That said, last week’s decision is a landmark for proponents of equality, and should have far-reaching implications in the coming months.

Clarity on the Issue

The Supreme Court declined to review this issue for the current term when there were just two circuits split in authority, but now that more Court of Appeals decisions are coming down there is a clear need for clarity on the issue. Although the Supreme Court is extremely unpredictable in its decision making, there has been a clear trend toward including sexual orientation within the protection afforded by Title VII in the district courts (as well as the aforementioned state laws).

If you are an employer who has yet to institute a policy prohibiting discrimination and harassment on the basis of sexual orientation, now would be a good time to do so, regardless of your jurisdiction’s current position on the issue. In addition to the legality of the issue, it is simply good practice to be more inclusive than the law on issues of discrimination and harassment. For that reason, now may be a good time to train your employees on issues of sex-based discrimination that they may not traditionally associate with their view of “sex discrimination” and what exactly that term means.

Syntrio is a leader in the human resources and employment law fields (as well as ethics and compliance), and is prepared to help your company implement a compliance program aimed at reducing the potential impact of harassment, discrimination and other employment law issues your organization may face. Syntrio takes an innovative philosophy towards employment law training program design and strives to engineer engaging, entertaining, and thought-provoking content.

 


Contact www.syntrio.com for more information about our discrimination, harassment, and prevention of retaliation online courses and remember to follow us on Facebook, TwitterGoogle Plus and LinkedIn for daily updates on corporate compliance that impact your company.


Written by, Jon Gonzalez, Esq., Chief Counsel for Syntrio