Retaliation

Scope

The laws and regulations regarding discrimination and harassment prohibit employers from retaliating against individuals who oppose unlawful employment discrimination, participate in employment discrimination proceedings, or otherwise assert their rights under the laws enforced by the Equal Employment Opportunity Commission (EEOC). Most state anti-discrimination laws include similar protections. An individual who alleges retaliation need not claim that the treatment was based on race, religion, sex, national origin, age, or disability. An individual who alleges retaliation for protesting discrimination against persons in the protected group need not be in the protected group themselves.

Regulatory citations

• None

Key definitions

• None

Summary of requirements

Retaliation complaints have become a large problem for employers. After a charge has been alleged, employers or supervisors sometimes take actions against the charging employee, and the employee may bring a retaliation claim. At this point, the employer or supervisor may bear responsibility for proving that the action was based on legitimate employment concerns and was not founded in retaliation. A charge of retaliation can be established even if the alleged discrimination was not founded. It is not uncommon for an employer to win the underlying discrimination case, but still be found guilty of retaliation.

Protected activity. Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Equal Pay Act prohibit retaliation because an individual has engaged in protected activity. Protected activity includes:

• Opposing a practice made unlawful by an employment discrimination statute; or
• Filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the applicable statute.

Employees can charge retaliation even if it occurred after their employment relationship ended.

A charging party can bring an ADA retaliation claim against an individual supervisor, as well as an employer. This is because Section 503(a) of the ADA makes it unlawful for a “person” to retaliate against an individual for engaging in protected activity.

Elements of a retaliation claim. There are three essential elements of an employee retaliation claim:

1. The charging party opposed discrimination or participated in covered proceedings;
2. The employer or supervisor took adverse action;
3. There is a causal connection between the protected activity and the adverse action.

Examples of employee opposition to discrimination include:

• Threatening to file a charge or other formal complaint alleging discrimination;
• Complaining to anyone about alleged discrimination against oneself or others;
• Refusing to obey an order because of a reasonable belief that it is discriminatory; and
• Requesting reasonable accommodation or religious accommodation.

The manner of opposition must be reasonable for the anti-retaliation provisions to apply. For example, opposing an employment practice through unlawful activities such as acts or threats of violence to life or property would not be protected. In applying a “reasonableness” standard, courts and the EEOC balance the right of individuals to oppose employment discrimination and the public’s interest in enforcement of the EEO laws against an employer’s need for a stable and productive work environment.

Unprotected activities. Courts have found that the following activities were not reasonable and thus not protected:

• Searching and photocopying confidential documents relating to alleged ADEA discrimination and showing them to co-workers;
• Making an overwhelming number of complaints based on unsupported allegations and bypassing the chain of command in bringing complaints; and
• Badgering a subordinate employee to give a witness statement in support of an EEOC charge and attempting to coerce the employee to change their statement.

If an employee’s protests interfere with job performance to the extent that they render the employee ineffective in the job, the retaliation provisions do not immunize the worker from appropriate discipline or discharge. Opposition to perceived discrimination does not serve as license for the employee to neglect job duties.

A person is protected against retaliation for opposing perceived discrimination if the person had a reasonable and good faith belief that the opposed practices were unlawful. Thus, a violation of the retaliation provision can be found even if the challenged practice is not found to be unlawful.

Establishing a claim. In order to establish unlawful retaliation, there must be proof that the respondent took an adverse action because the charging party engaged in protected activity. Proof can be through direct or circumstantial evidence.

• Direct evidence. Direct evidence of a retaliatory motive is any written or verbal statement by a respondent (such as a supervisor against whom a charge was made) that the respondent undertook the challenged action because the charging party engaged in protected activity. Such evidence also includes a written or oral statement by a respondent that on its face demonstrates a bias toward the charging party based on the protected activity, along with evidence linking that bias to the adverse action. Such a link could be shown if the statement was made by the decision-maker at the time of the adverse action. Direct evidence of retaliation is rare.
• Circumstantial evidence. The most common method of proving that retaliation was the reason for an adverse action is through circumstantial evidence. If circumstantial evidence indicates retaliation, and the respondent cannot produce evidence of a legitimate, non-retaliatory reason for the action, then a violation is established.
• Timing. Many times, the timing of the action is important. If the discipline occurs soon after the protected activity, it may be difficult to convince the agency or court that one deed did not cause the other. On the other hand, charging parties have great difficulty convincing the court or agency that actions which occurred years after the protected activity were caused by it.

Avoiding claims. Employers must recognize that supervisors and fellow employees who are charged with improper actions, whether fairly or unfairly, have a tendency to want to fight back and may retaliate out of emotion or anger. To avoid such claims, the employer should meet with those involved, talk about retaliation claims, and ensure a “business as usual” approach.

It may also be useful to meet with the complaining employee to confirm that no inappropriate actions have occurred, to resolve any misunderstandings, and to establish a line of communication in the event an issue arises.