Protect yourself against retaliation
EDITOR'S NOTE:
Nancy J. Brent, MS, JD, RN, brings more than 30 years of experience to her role as Nurse.com’s legal information columnist.
A nurse manager submitted a question about a situation in which she was suspended with pay for an indefinite period of time for allegedly initiating an investigation about a male employee sexually harassing a female employee.
If the allegations are true, the male employee could have violated the female employee’s right against discrimination, based on Title VII of the Civil Rights Act of 1964. Although the nurse manager was told about this harassment, she had not yet initiated an inquiry into the female employee’s evaluations when suspended.
The circumstances reported may suggest that administration does not support delving into potential allegations of sexual harassment in its workplace. This is quite alarming since the Equal Employment Opportunity Commission released its Fiscal Year 2015 Enforcement and Litigation Data in February 2016 indicating that it resolved 92,641 charges during that year and secured more than $525 million for victims of discrimination in the private sector and state and local government worksites through litigation and voluntary resolutions.
Employers are not permitted to fire, demote harass or otherwise “retaliate” against any individual for filing a charge of discrimination, participating in a discrimination proceeding or otherwise opposing discrimination, according to the EEOC article, “Facts about retaliation.” The protection against harassment is included in all the laws enforced by the EEOC. According to the EEOC, 2015 charge numbers based on retaliation were 39,757, or 44.5% of all charge numbers.
The EEOC’s formula for retaliation is simple: An adverse action against a covered individual when the individual is engaged in a protected activity. Although too lengthy to discuss here, more details on the definitions can be reviewed in the EEOC’s article. There is no doubt, however, that the nurse manager’s suspension potentially fits into this formula. She has experienced an adverse action — indefinite suspension. It’s likely that she is a covered individual since she has been alleged to be conducting an investigation into the sexual harassment of a female employee under her supervision. And, she is being seen as opposing a practice “believed to be unlawful discrimination” under Title VII.
Opposition to unlawful discrimination is protected from retaliation if based on a reasonable, good faith belief that the complaint of an employee’s behavior violates anti-discrimination laws and the opposition is reasonable. There is no doubt about this condition being met in the nurse manager’s submitted question.
If you believe you are a victim of retaliation in your workplace, whether as an employee or as a nurse manager or supervisor, seek legal advice as soon as possible with a nurse attorney or attorney who practices in employment discrimination and represents employees. In preparation for your consultation with the attorney, you may want to review the EEOC’s proposed guidance on retaliation. Its last guidance was updated in 1998.
The circumstances reported may suggest that administration does not support delving into potential allegations of sexual harassment ...”
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By Nancy J. Brent
MS, JD, RN
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