EEOC Retaliation

EEOC Retaliation rules, which outline workplace conduct laws, is outlined by the The U.S. Equal Employment Opportunity Commission (EEOC). The EEOC publication, Enforcement Guidance on Retaliation and Related reflects application of the original federal legislation enacted in 1998, and revision to those laws since. The report covers issues of reprisal under civil rights and anti-discrimination laws.

The EEOC strictly prohibits employers from retaliation in response to employee complaint. Employee reprisal may also involve participation in the EEO process as a witness for employees that have voluntarily participated in employer investigations into EEO allegations. The EEOC acknowledges that employers can still discipline employees who have raised an EEO allegation. Employee review as part of performance management is a legitimate and credible activity that entitles an employer to evaluate employee contribution within the confines of the law. Retaliation by an employer, however, is prohibited.

What is retaliation?

An adverse action taken by a manager against an employee who has filed an EEO complaint is expressly acting in retaliation. The EEOC provides for rules to protected activity versus adverse action. Punishment of an employee for engaging in legally protected activity (i.e., EEO complaint) is retaliating. Acts of retaliation include discipline, demotion, firing, salary reduction, or job or shift reassignment.

What is protected conduct activity?

Protected activities are legally “reasonable”, and may be explicit or indirect in execution. An employee filing a direct claim may also engage in “protected opposition” by stipulating facts during an EEO investigation. It is not the obligation of the employee to prove their claim of workplace wrongdoing. The EEOC is responsible for validation of claims.

Protected conduct covers acts of remediation intended to diffuse discrimination or retaliation. Filing a claim alleging discrimination or verbal opposition to an act of discrimination that has been commissioned against yourself or another employee, is example of protected conduct. Giving witness testimony is also protected conduct if an unlawful act of retaliation has taken place in the workplace.  For a retaliation claim to exist, the EEOC will investigate to evidence the facts surrounding the complaint. Protected opposition covers protects all employees, including those in HR and managers willing to provide information about a claim or to testify.

To be effective in managing adverse actions, employers must understand the categories of “protected activities” under EEO law. The EEOC may uphold a claim of retaliation, even where a claim of discrimination has been dismissed. If an employee informs an employer of illegal violations such as discrimination, and has requested reasonable accommodations (where required), and has filed with the EEOC, an investigation will be ensuing to record the facts.

What are examples of protected opposition?

The EEOC provides EEO compliance education and training to organizations interested in learning more about rules to employer conduct. Advising an employer on EEO compliance, and human resource reporting of EEO violations, involves case studies of protected opposition. An example of protected opposition is a case where sexual harassment has occurred on the job, and the employee victimized by the employer has experienced retaliation in the form of reduced wages as result of complaining to a sympathetic supervisor and filing allegations. Passive resistance, such as a supervisor refusing to carry out management’s instruction to discourage subordinates from filing discrimination complaints.

What is adverse action?

Adverse actions are a disagreement placed on official record. In legal matters, adverse parties litigate matters that cannot be solved out of court. In the workplace, adverse actions are those taken by employers to prevent or dissuade the covered individual from opposition of unlawful discrimination.

Adverse actions include:

  • Undue employee evaluations
  • Undue denial of promotion or bonuses
  • Termination
  • Negative references post-termination
  • Misconduct that is adequate grounds for a civil or criminal charge such as assault or threats

Adverse actions can also be acts that are work-related, yet enforced by the retaliating part outside of work. Retaliation is an adverse action that may even be taken against a third party who is closely aligned with a complaining employee.

Adverse actions refer to any actions

When an employer threatens termination of a complaining employee, or extends this threat of retaliation targeting an employee’s family member or business relationship, the exceptional nature of retaliatory violence is exhibited as “fact”. The further the reach, the more dissociative the punishment, the more transparent an adverse party (i.e., employer) likely is. This is the rationale of the EEOC. If adverse actions refer to any act of undue punishment, the forms of unlawful misconduct by employers is seen in the multitude of claims exhibiting the negligence of retaliation in “cause-in-fact” analysis in EEO cases on record. 

What is causal connection?

Creating a convincing fact pattern outlining a case with circumstantial evidence supporting the inference of retaliation is important, as it substantiates allegations beyond hearsay. Casual connection is “where there’s some, there’s fire” approach. Creating a convincing fact patent may require full record of a person’s employment history to evidence if an adverse action was present previously, as well as any proof of protected activity before the most recent retaliation claim.

Even if an extended period has passed between an adverse action and protected activity, a short time frame makes establishing a causal relationship easier. The most challenging aspect of filing a retaliation complaint is evidencing causal relationship between the adverse action and an employee’s rights. Timing or sequential acts are sometimes proof of causal relationship.

If the employer terminates an employee immediately after allegations of discrimination have been filed, it may be juried that protected conduct itself was the rationale given by the employer for the employee’s termination. In a recent Supreme Court ruling, it was held that a retaliation complaint must be evidenced to meet the ‘but- for- causation’ common law standard to torts.

In other words, an employee must show that retaliation would not have resulted but for the protected activity. Documentation and other evidence expressly denying an employee adequate performance on employment contract to the point of termination, meets the but-for rule to liability.

Best practices for employers to minimize retaliation violations

The formation of best practices to minimize damages resultant from retaliation violations is the culmination of years of knowledge sharing experience between legislators, advocates, attorneys, employers, and employees. Employers should provide a written anti-retaliation policy to employees, to inform them of their rights. Definition of what retaliation is should be followed by examples of how an employer is taking legally actionable steps to educate executives, supervisors, managers, and employees about anti-retaliation policy.

Employers can establish a mechanism by which an employee can report acts of retaliation. By providing employees with transparent explanation about the differences between disciplinary action and retaliation up to rules to termination. Most employers with effective best practices in adherence with EEO rules, abide by civility, which reduces the number of incidences of EEOC complaint. An employer may not post notices to the employee without following the rules of EEO law. Advising employees of their employment rights under EEO law enforces their right to be free from retaliation.

Employers found to be in violation of EEO laws may also be required to take preventative or corrective action to remedy discrimination, and articulate steps to remediating any circumstance that will lead to recurrence. The employer is at liberty to discontinue the specified discriminatory activities in workplace practices described in a case.

How can employee counter his employer's denials?

Circumstantial evidence is effective in compilation of a case against an employer denying adequate redress of an internal discrimination complaint. Employees can disprove the employer's cited reasons for his termination using the same type of evidence used to show preceding acts in a discrimination case. If an employer's statement is factually untrue, and insufficient evidence is found to have caused termination, an employee has a legitimate case of retaliation.

What are the remedies available for the victims of retaliation?

Victims of retaliation can recover remedies such as:

  • Hiring
  • Back-pay
  • Front-pay
  • Promotion
  • Reinstatement
  • Punitive damages
  • Other actions that would otherwise make an individual "whole" if not denied

Remedies also may include payment of attorneys' fees, court costs, and expert witness fees.

If employees lose his discrimination claim can he still win his retaliation claim?

Retaliation complaints are considered separate from discrimination complaints. Even where an employee has lost a discrimination claim, they may still succeed at penalizing an employer for retaliation if such an act is substantiated. Employees filing complaints may suffer from retaliation during the EEOC investigation process. This is understood, despite that in some cases discrimination is not found to be factual.

Adverse actions against an employee during the investigation process may result in retaliation complaint remedies. Employees can also file a retaliation claim on behalf of another employee in a collective discrimination case, or in entirely separate claims where both co-workers assert that an employer has wronged them.

How can employee file a complaint?

Retaliation in response to a discrimination complaint, or for filing discrimination complaints is prohibited under federal law. Filing of retaliation complaints is done by the same state agencies. If an employee alleges that an act of retaliation has taken place, and the employer refuses to correct the problem, the EEOC investigation can further assist an employee in showing causal link between the employer's retaliatory behavior and the complaint.

When Is Retaliation Prohibited?

Federal law protects employees from employer retaliation associated with an internal or external complaint. Employees filing EEOC complaints usually target workplace harassment or discrimination. If a claim is made in good faith, and the employer retaliates, a separate claim should be filed. Retaliation evidences that an employer is willing to take adverse action rather than cure a relationship.

The law protects employees who are cooperative during EEOC investigations or are serving as witnesses in a litigation case. There are expanded legal protections for "whistleblowers" who file claims amid unsafe working conditions in a hostile work environment.

How will an employee know if the employer is retaliating against him?

It can at times be difficult to understand if an employer is retaliating against a worker. Transition scenarios create adverse effects on employees sometimes, but it is nebulous as to if the intent behind the effect is retaliatory. Transparently negative acts by an employer with an employee that has already filed a discrimination complaint are those thought to be retaliatory acts. Demotion or firing during the same period is reason for an EEOC investigative reporting to result in acknowledgement of alleged claims of retaliation as true.

What to do if employee suspects retaliation?

In a case where an employee suspects employer retaliation, communication with the supervisor or human resources administration about reasons for negative acts places those insights on record. If an employer is not able to provide a credible excuse, a legitimate complaint charging retaliation is likely to follow.  If the employer is unwilling to admit wrongdoing or take steps to correct the issue, an employee may be pressed to file complaint with the EEOC.

What are examples of protected opposition?

The EEOC Enforcement Guidance on Retaliation and Related indicates that opposition protects all employees, including those in HR and managers. Advising an employer on EEO compliance, such as HR reporting EEO violations to management protected opposition is an example of protected opposition.

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