If a Tree Falls in a Forest: Employee Hesitancy to File EEOC Complaints and Fostering a Speak-Up Culture

As many employers boast inclusive workplaces with zero tolerance for any form of discrimination, corporate America may be missing the biggest harbinger of toxic culture: complaints that remain unvoiced because the affected employees fear retaliatory action. When employers are not committed to an anti-retaliation and speak-up culture, these concerns bear out, according to a recent report from the University of Massachusetts Amherst’s Center for Employment Equity.

After reviewing 683,419 EEOC complaint outcomes from 2012 to 2016 relating to race, sex, disability, age, and national origin, the UMass researchers found that at least 63% of workers who filed with the EEOC lost their jobs. The percentage climbed to 67% for claims based on disability.

As the UMass Center for Employment Equity study demonstrates, only a small percentage of employees who believe that they have experienced workplace discrimination will officially pursue their complaints. However, employers are well-advised to hear complaints and resolve them, as there may be systemic issues or concerns that will crop up later, and pervasive issues are more costly and detrimental for both employers and employees.

Employers Should Do a Better Job of Encouraging Employees to Voice Concerns

To improve the likelihood that employees will vocalize concerns before they become institutional issues, an employer should openly encourage employees to raise concerns, and take those concerns seriously when an employee speaks up. A complaint process that is easy to access and is well publicized is critical. With regard to ease of access, employers may consider technology options, such as an application for reporting that can be installed on the employees’ phones. Once an employee raises a complaint, the employer should investigate the concern promptly, taking the time to assure the complainant that their concerns are being taken seriously. The complainant and witnesses should receive assurances that they are protected from retaliation and that they should report any activity they perceive to be retaliatory. Critically, the employer should warn the subject of the investigation, as well as other stakeholders and witnesses, about their obligation not to retaliate, and take prompt remedial actions if they fail to heed the warning.

Employers should proactively evaluate the existing complaint processes to ensure that complaint mechanisms are trusted and effective. An effective process begins with cultivating a “speak-up” culture, in which every employee believes that they have a safe means of communicating any questions or concerns as they arise, rather than allowing small problems to fester into legal quagmires.

Another opportunity to grow a speak-up culture is by educating managers and supervisors to recognize conduct inconsistent with an open and respectful culture so that they speak up when they see something that needs to be addressed, modeling the right behavior. An ounce of prevention based on an independent workplace investigator’s assessment can help to prevent issues that rise to the level necessitating an EEOC complaint or further legal action. And the most effective speak-up culture will come from the top.

A workplace that fosters and values open communication will have corporate executives and management who walk the walk and talk the talk. For example, if business meetings are conducted openly and are receptive to differing voices of opinion, where all people are heard, and conduct not consistent with these values is addressed immediately, employees will begin to trust and believe that their own voice is respected. They will learn that speaking up is not only tolerated but encouraged. Resolving issues internally will result in fewer people filing claims formally in court or with an administrative agency.

In fact, the Amherst study reported that New Jersey is the only state that stood out as consistently generating low rates of discrimination charges. The researchers suggested evidence that New Jersey employers may be better than average at handling disputes internally, which points toward employees’ being less likely to seek legal redress.

At Tribu Partners, in addition to independent workplace investigations, we also provide post-investigation services that help organizations remediate issues, repair processes, and build resilient and inclusive workplace cultures.