Generally, Federal civil rights laws prohibit employers from retaliating against an employee who asserts the right to be free from workplace discrimination or harassment. Nearly half of all discrimination complaints that are filed under federal law also include a retaliation claim.
Even when a discrimination claim is not supported by the facts, an employee may succeed in bringing a retaliation claim if the employee was punished or adversely affected in some way for complaining about discrimination. It is therefore crucial for employers to understand the issues surrounding potential claims for retaliation and to take steps to assure that they are not perceived as retaliating against employees who raise concerns about discrimination or harassment.
The U.S. Equal Employment Opportunity Commission (EEOC) interprets and enforces federal laws that prohibit retaliation, among others. To help employers understand how the EEOC views those laws, the EEOC recently issued a new “Enforcement Guidance on Retaliation and Related Issues,” to replace its 1998 Compliance Manual section on retaliation. The new guidance addresses retaliation under each of the statutes enforced by EEOC, which includes Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA) and Title II of the Genetic Information Nondiscrimination Act (GINA).
Key provisions of the new guidance are summarized below, although the entire Guidance and related publications may be found on the EEOC’s website by clicking here
What is retaliation?
Retaliation occurs when an employer takes adverse action against an employee or job applicant for asserting rights or engaging in activities that are protected by federal equal employment opportunities laws. Opposing a violation of an equal employment opportunity law and participating in proceedings in an equal employment opportunity matter are protected activities. Specific examples of protected activities include:
- reporting discrimination, harassment, or retaliation to a supervisor;
- complaining about discrimination, harassment, or retaliation against another employee;
- filing a claim with the EEOC or a state agency concerning equal employment opportunity law violations;
- filing a lawsuit that alleges an equal employment opportunity law violation;
- cooperating with an investigation of a potential equal employment opportunity violation;
- refusing a request to engage in discriminatory, harassing, or retaliatory conduct;
- resisting sexual advances;
- requesting an accommodation for a disability or religious practice;
- talking to coworkers in an attempt to gather information in support of a suspected violation of an equal employment opportunity law;
- discussing rates of pay if those discussions further an investigation of potential wage discrimination claims; or
- testifying (or offering to testify) on behalf of an employee who claims to have been the victim of discrimination, harassment, or retaliation.
Even if an employee makes a meritless equal employment opportunity complaint that is ultimately denied, it is illegal to retaliate against the employee who made the complaint. It is also illegal to retaliate against any employee who participated in agency or court proceedings on behalf of the employee who made the complaint, regardless of the outcome of those proceedings.
If no complaint of an equal employment opportunity law violation has been made, an employee is nevertheless protected from retaliation if the employee engaged in conduct that was motivated by a reasonable belief that the employer violated equal employment opportunity laws. The guidance also makes clear that employers are guilty of retaliation if they create or follow policies that discourage employees from exercising rights that are protected by equal employment opportunity laws.
What are some examples of retaliation?
Retaliation includes actions against an employee that are “materially adverse.” An employment action is materially adverse if it might deter a reasonable person from engaging in protected activity.
An employee or job applicant who engages in any activity that is protected by equal employment opportunity laws might be the victim of retaliation if an employer responds to that activity by taking any significant adverse action against the employee. Examples of materially adverse actions that might be regarded as retaliatory include:
- firing the employee;
- refusing to hire the job applicant;
- suspending the employee;
- demoting the employee or removing responsibilities from the employee’s position;
- denying a promotion;
- reducing the employee’s pay, hours, or benefits;
- reprimanding, warning, or otherwise disciplining the employee;
- giving the employee an unfair performance review;
- giving the employee a less favorable job assignment;
- excluding the employee from opportunities that are necessary for advancement;
- reassigning the employee to a less convenient work site;
- harassing the employee;
- threatening the employee;
- pressuring the employee not to file a complaint or not to testify on behalf of another employee;
- revealing confidential medical information about the employee;
- making false statements or spreading rumors about the employee or the employee’s family members; or
- making false statements in a job reference concerning a former employee.
Activity that is protected by equal employment opportunity laws includes actions taken during previous employment. For that reason, refusing to hire a job applicant because the applicant made a discrimination complaint against a former employer is an act of retaliation.
What if an employee deserves to be disciplined or fired?
The law does not prevent an employer from taking any adverse action against an employee unless the action is motivated by the employee’s protected activities. Poor job performance, disruptive actions that are unrelated to protected activities, work rule, procedure, or policy violations, and downsizing are legitimate reasons for discipline or discharge.
At the same time, if the employee has made, supported, or participated in a complaint about workplace discrimination, any adverse action taken against the employee might be perceived as retaliatory. It is therefore vital to consult with an employment attorney before taking any adverse action under those circumstances. The employment attorney will want to make sure that the justification for taking adverse action is fully documented, and might caution against disciplining or discharging the employee unless there is very clear evidence that the adverse action is legitimate, rather than one that can be interpreted as retaliatory in nature.
To speak with the employment and business law attorneys at Marshall Grant, PLLC about your business’ needs and the EEOC’s new guidance on retaliation, please contact us at [email protected] or Tel. 561-361-1000.
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