A retaliation claim can be successful even when the original discrimination claim fails to establish a violation of law. The same laws—federal and typically state laws—that prohibit discrimination based on race, color, sex, religion, national origin, age, disability, or genetic information also prohibit retaliation against individuals who oppose discrimination or participate in an employment discrimination proceeding.
Why are the laws written this way?
Well, if employees are unwilling to come forward and speak out or are unwilling to participate when someone else has alleged a complaint, then discrimination cannot be addressed.
In other words, retaliation is illegal because it has a “chilling” effect on the willingness of individuals to come forward.
Employment Protections
Individuals who file a claim believing they have experienced discrimination are protected. Individuals who are interviewed, or give statements, or who testify about the alleged wrongful employment action are also protected.
What kind of “participation” activity is protected?
- Filing a charge, internal complaint, or lawsuit alleging discrimination;
- Being a witness in an investigation or formal proceeding of a charge or lawsuit;
- Communicating with a manager or supervisor about discrimination or harassment;
- Answering questions during an employer investigation of discrimination or harassment;
- Refusing to follow company practice, policy, or management orders that would result in discrimination;
- Resisting sexual advances or intervening to protect others;
- Requesting a disability or religious accommodation; and
- Asking managers or coworkers about salary information to uncover potentially discriminatory wages.
This isn’t a complete list. Any activity that brings discrimination to light is protected under discrimination laws. Each of these examples describes behavior that must be protected so discrimination in the workplace can be investigated and eliminated.
Examples Of Retaliatory Actions
A company cannot fire, demote, harass, or otherwise retaliate against a person for engaging in protected activity. The following are examples where the Equal Employment Opportunity Commission (EEOC) found retaliation:
- A manager placed information about prior discrimination complaints in an employee’s personnel file to prevent her from obtaining a promotion.
- Two panelists who were interviewing candidates for a promotion were involved in either current or prior discrimination complaints filed by one of the employees.
- An employer took away a perk (use of a company car) from an employee who had recently filed a discrimination claim.
- An employee was given a lower performance appraisal than was warranted.
- An employee was transferred to a less desirable position.
- An employee received increased scrutiny.
- Management made work more difficult by purposefully changing a work schedule to conflict with family responsibilities.
- Management engaged in verbal or physical abuse with an employee.
Close proximity in time is also a factor reviewed by courts and the EEOC to determine when an action against an employee is retaliatory. The closer in time the alleged retaliatory behavior is to the charge or the participation in the discrimination proceeding, the more likely it will be found to be retaliation.
If someone files a charge, or participates in an investigation, are they protected forever? No. You’re free to discipline or fire workers if the reason is nondiscriminatory and nonretaliatory. However, you will carry the burden of proof to establish a nondiscriminatory and nonretaliatory reason for the action.
The EEOC will file suit against companies that allegedly retaliate.
Case Study
In a recent news release, it announced it had filed suit against TCI of Alabama, a recycler of electrical equipment at a plant in Pell City, Alabama.
According to the lawsuit, after a female filed an EEOC discrimination charge for failure to hire based on gender, TCI interviewed a management employee who supported the allegation saying TCI had a longtime practice of not hiring female laborers. When the company was unsuccessful in getting the manager to change his statement, it terminated his employment.
The EEOC filed suit on his behalf seeking money damages, compensatory and punitive, and injunctive relief to prevent such unlawful conduct in the future.
Best Practices for Reducing Retaliation Liability
Here are some best practices you should consider implementing to reduce your liability for retaliation claims:
Have a policy that your company will not tolerate discrimination or retaliation and that employees who come forward in good faith will be protected.
- Have a policy that provides several ways for employees to complain about discrimination (e.g., hotline, HR, certain executives).
- Investigate every complaint.
- Document performance so that when you want to terminate an employee who has complained or participated, you will have documentation of poor performance before the discrimination charge was filed.
Roberta Fields is an attorney with McAfee & Taft in its Oklahoma City office. Fields is a trial lawyer who regularly represents employers in all areas of employment law, including litigation in state and federal courts, in arbitrations, and before regulatory and administrative agencies such as the Equal Employment Opportunity Commission (EEOC), Department of Labor (DOL) and Oklahoma Human Rights Commission. You can reach her at roberta.fields@mcafeetaft.com.
Business and Learning Resources (BLR), a division of Simplify Compliance, LLC, is an industry-leading knowledge provider with more than 40 years of experience in human capital management, environmental, health, and safety; learning and development; and legal markets. BLR® provides innovative education solutions designed to help businesses deliver consistent training, achieve compliance, and maximize efficiencies in employee workflows, resulting in measurable performance and financial improvements.