Workplace Retaliation: Reduce the Chances of a Claim

Retaliation is the most frequently alleged basis of discrimination in the federal sector and the most common discrimination finding in federal sector cases, according to the U.S. Equal Employment Opportunity Commission (EEOC).

The laws enforced by the EEOC prohibit punishing job applicants or employees for asserting their rights to be free from employment discrimination including harassment. Asserting these rights is called protected activity, and it can take many forms.

In order to prevent illegal retaliation in your workplace, you have to understand some basic definitions.

Retaliation refers to actions an employer takes against a covered individual because he or she engaged in a protected activity.

Adverse actions are steps taken to keep someone from opposing a discriminatory or harassing practice or participating in an employment discrimination proceeding. Examples of adverse actions include firing an employee, denying a promotion and giving an unjustified negative performance evaluation.

Covered individuals under the laws administered by the EEOC are people who have opposed unlawful practices, participated in proceedings, or requested accommodations related to employment discrimination based on race, color, sex, religion, national origin, age, or disability.

Individuals who have a close association with someone who has engaged in protected activity are also covered. For example, it is illegal to terminate an employee because his spouse (who is also an employee) participated in employment discrimination litigation.

Note: In addition to the employment laws administered by the EEOC, retaliation can occur against individuals who may be protected by other federal, state, or local laws. This includes the federal Family Medical Leave Act and whistleblower laws that bring attention to ethical, financial, or other concerns.Protected activity includes opposing a practice believed to be unlawful discrimination. For example, an employee complaining about treatment he or she believes is discriminatory — directed at the employee or a co-worker. Protected activity also includes participating in an employment discrimination proceeding or requesting a reasonable accommodation based on religion or disability.

Cases of retaliation may not be as simple as they may seem. They don't just involve an employee making a claim of harassment or discrimination. They might involve co-workers, witnesses and family members of the employee. Here are some examples of EEOC cases involving a range of retaliatory acts:

• ‍Firing an employee and family members. A waitress for a Mexican restaurant in Georgia complained about inappropriate touching and remarks made by a cook. Her mother, aunt and uncle also worked at the restaurant and complained. All four family members were fired in retaliation for reporting the misconduct, according to the EEOC. A federal jury awarded $51,700 in back pay, compensatory and punitive damages to the family members.(EEOC v. Sangria's, No. 1:09-cv-2566)‍
• Denial of a salary increase or consideration of a new position. An employee filed an age discrimination complaint against a county government office in Texas. According to the EEOC, the employer "repeatedly refused to give a salary increase to the employee and failed to consider her for another position" because of the claim that resulted in a lawsuit. The county employer agreed to settle the suit by paying $20,000 and furnishing other relief. (Civil Action No. 2:11-cv-00086)‍
• Protection of those close to an employee. The U.S. Supreme Court ruled that an employee who was allegedly fired because his fiancée filed a claim with the EEOC could sue the employer for retaliation. The worker at a Kentucky stainless steel production company was treated as an "aggrieved person." According to the High Court, he fell within the allowable "zone of interests" and was protected by the law in question. (Thompson v. North American Stainless, LP, No. 09-291, 1/24/11)‍
• Firing after complaining about sexual harassment. An auto glass repair and replacement company agreed to pay $50,000 and furnish other relief to settle an EEOC lawsuit for sexual harassment and retaliation. The EEOC's lawsuit against the company charged that a human resources assistant was subjected to unwelcome sexual comments and touching by the facility's human resources manager. The lawsuit further alleged that when the employee complained about the sexual harassment, the company failed to take action to stop it and retaliated by firing her. (EEOC v. Safelite Glass Co., Civil Action No. 4:10cv102, in the Eastern District of North Carolina).‍
• Termination over a wage-based discrimination charge. A quality assurance manager at a pharmaceutical plastics manufacturing company complained internally about gender-based discrimination. When the employer concluded there was no discrimination in wages, she took her grievance to the EEOC. A short time later, the employee was fires for "purportedly misusing leave time," according to the EEOC. The employer agreed to pay $90,000 to settle the retaliation lawsuit brought by the federal agency. (Civil Action No. 1:10-cv-03082)

There are several steps you can take to help prevent retaliation at your organization. They include:

• Investigate complaints promptly.
• Be careful about making work changes, such as transfers or modifications in responsibilities and schedules, once an employee makes a complaint.
• Consult with an attorney or HR advisor before taking disciplinary actions that could be considered retaliatory, such as written reprimands, demotions or terminations.
• Don't monitor people who file complaints more closely than others. Make sure they aren't ostracized by managers.
• Be aware that even if the initial discrimination allegation is found to lack merit, employers are still liable for retaliation.
• Make certain there is a legitimate reason for any perceived adverse action taken against an employee as a defense against a retaliation claim.

Keep an open door policy. Have a culture where staff members feel comfortable reporting problems to company officials, rather than someone outside the organization. Train supervisors about what constitutes retaliation and how to avoid it. Make it clear in written policies and in verbal discussions that retaliation will not be tolerated and will result in discipline.

"Time and again, the EEOC sees cases where retaliation by employers is as bad, or even worse, than the original discrimination," explained Barbara A. Seely, a regional attorney in the EEOC's St. Louis District Office. "Employers must understand that the law prohibits not only discrimination, but also retaliation against employees who complain about discrimination, who file discrimination charges with the EEOC, or who participate in discrimination lawsuits."