It’s no surprise to many employers that discrimination claims have been on the rise over the past several years. But related lawsuits for retaliating against employees who lodge these complaints are also booming. From 1991 to 1997, the number of retaliation charges filed each year with the Equal Employment Opportunity Commission skyrocketed by almost 130%. To help clarify employee rights and employer responsibilities in potential retaliation situations, the EEOC has just released new guidelines.
Who Is Protected?
The anti-discrimination laws bar employers, employment agencies and unions from retaliating against applicants and current or former employees who speak out against discriminatory practices or who participate in a discrimination investigation or proceeding. Separate laws protect workers from retaliation in other instances too, such as when they report workplace health and safety deficiencies or alleged illegal practices. Although the new guidelines only address retaliation against employees who complain about discrimination, they are helpful in analyzing other retaliation situations as well.
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Protected Employee Conduct
The EEOC lists the following examples of employee conduct that’s protected under the anti-retaliation laws:
- Threatening to file a discrimination charge or complaint.
- Complaining to anyone, including a manager, co-worker or even a newspaper reporter, about alleged discrimination or unfair treatment.
- Complaining on behalf of someone else. The law protects both the com- plaining employee and the person on whose behalf the charge was made.
- Refusing to obey an order because of a reasonable belief that it’s discriminatory.
- Requesting a disability or religious accommodation.
- Filing a charge, testifying or participating in a discrimination investigation or hearing. This conduct is protected even if the underlying discrimination claim is determined to be invalid (see below).
Employee Must Act Reasonably
According to the EEOC, the anti-retaliation protections apply only when the employee has acted in a reasonable manner. For example, public criticism of discrimination and peaceful picketing will probably be protected. But threatening violence or disclosing confidential documents to co-workers won’t be covered.
Good Faith Or Bogus Complaint?
The EEOC also says that an em- ployee is protected against retaliation so long as their complaint is based on a reasonable and good-faith belief that discrimination occurred. It doesn’t matter whether the complaint is ultimately found to be true. There have been situations where employees who sense they are about to be fired have made bogus reports about workplace safety, discrimination or some other issue. Then if they are terminated, the worker claims that they were the victim of retaliation. Since it can be expensive and difficult for you to prove they did not have a reasonable, good faith belief in the truth of their complaint, a cash settlement may end up being the only cost-effective way to end the dispute. To protect yourself, before terminating an employee who has reported discrimination or safety problems, be sure you have detailed records supporting the reason for the discharge.
Retaliatory Actions
Termination is not the only form retaliation can take. The EEOC guide- lines contain a long list of employer actions, some obvious, others not, that can amount to retaliation. These include:
- Denial of promotion or job benefits.
- Demotion, suspension or discharge.
- Refusal to hire.
- Threats or harassment.
- Reprimands or negative evaluation.
- Giving an unjustified negative job reference or informing a prospective employer that the employee or former employee complained about discrimination.
- Refusing to hire an applicant because you’re aware they filed a complaint against or sued their former employer for discrimination.
And, according to the EEOC, you can be found to have retaliated even if your action did not significantly impact the employee. Anything you do that is likely to deter a worker from complaining about discrimination is probably unlawful.
Here’s an example. An employee complains of harassment by a supervisor and two co-workers. On learning of the charge, the supervisor instructs the co-workers to keep an eye on the employee. According to the EEOC, this would be illegal retaliation because it’s likely to deter the employee or others from complaining.
Employees Must Prove A Link
To establish retaliation, an employee must be able to show that you took the adverse action because the person engaged in protected conduct. Clearly, an employee can make this connection if you’ve made oral or written statements that indicate you’re illegally biased against them. Someone can also prove retaliation with circumstantial evidence, such as by showing that the adverse action occurred shortly after they complained to you.
Practical Strategies
If you need to take action against a worker who has protested, let plenty of time pass after the complaint is made before you act. This will make it harder for the employee to show a connection between their complaint or protest and your action. Also, be sure your records demonstrate the legitimate reasons for your employment decisions.
For More Information
For a free copy of the guidelines, call (202) 663-4900. Or you can download them from the EEOC’s Web site. Look under Enforcement and Litigation.