In any dispute between a worker and his or her employer, fault is rarely ever one-sided or clear-cut. But when an official complaint is filed with agencies like the Equal Employment Opportunity Commission, a narrative is put in writing that can be hard for employers to dispel. As just one example, data suggest that workers who file complaints about discrimination are likely to get fired or face other retaliatory measures.
A recent analysis of EEOC complaints over a four-year period showed that about 63 percent of workers who filed discrimination complaints eventually lost their jobs, and about 40 percent said they experienced other kinds of retaliation (failing to get promoted, being verbally abused, etc.). The five most-common categories of discrimination complaints were race, sex, disability, age, and national origin.
Is there another way to interpret the statistics?
At first glance, those statistics look very bad for employers. And in many cases, the workers who were victims of discrimination may have also been fired for filing a complaint. But should we assume that to be true in all cases?
If an employee feels as though they were a victim of discrimination (regardless of whether they were), they might begin to behave very differently in the workplace. Their productivity might drop, they may start missing work more often than is reasonable, and they may be trying to get other employees involved in their complaint. Such behavior would be justification for a poor performance review or even termination (if the behavior was not corrected after being called out). On paper, however, the timing of the employee’s termination is easy to interpret as retaliation for filing a complaint.
What can companies do?
If one of your employees has filed a complaint with the EEOC or another regulatory agency, it is important to respond to the complaint and the employee very cautiously. Your actions in the aftermath of the complaint could be interpreted as evidence of retaliation. As soon as you become aware of the complaint, it is a good idea to consult with an experienced employment law attorney to ensure that your next moves help your defense rather than harm it.