Over the past several years, retaliation has become the most frequent complaint filed with the Equal Employment Opportunity Commission (EEOC). In fact, 56 percent of the complaints filed with the EEOC in 2021 included a claim of retaliation, up from 37.4% in 2011. What is retaliation and what steps can employers take to help avoid it? We answer those questions below.

What is retaliation?

Retaliation is when an employer takes an "adverse employment action" against an applicant or employee because they engaged in activity that is protected under the law, otherwise known as "protected activity." Various nondiscrimination laws prohibit retaliation in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, benefits, or any other term or condition of employment. In addition, there are prohibitions against retaliation for taking job-protected leave, filing workers' compensation claims, and for raising ethical, financial, or other concerns unrelated to employment discrimination.

What is an adverse employment action?

An adverse employment action is any action an employer takes that would likely dissuade a reasonable person from engaging in protected activity. Adverse employment actions include, but are not limited to:

• Termination
• Suspension
• Refusal to hire
• Demotion
• Failure to promote
• Negative performance evaluations
• Reduction of pay or hours
• Negative references
• Increased surveillance
• Disparaging remarks
• Threats of adverse action

What is protected activity?

The following are summaries and examples of retaliation and protected activities under various employment laws.

Opposing discrimination

Under Title VII of the Civil Rights Act, and other federal, state and local nondiscrimination laws, individuals have the right to oppose conduct they reasonably believe constitutes an unlawful employment practice, such as discrimination. They also have the right to file a complaint, testify or participate in investigations and proceedings related to allegations of discrimination. Engaging in this conduct is generally considered "protected activity."

Examples of retaliation for opposing discrimination:

• Transferring an employee to a lower paying position because they filed a sexual harassment complaint.
• Refusing to consider an applicant because they had filed a discrimination lawsuit against their former employer.

Note: Even if an underlying discrimination claim fails, an individual can still prevail on a retaliation claim. For example, if an employee’s discrimination claim turns out to be unsubstantiated, the employee can still show they engaged in protected activity. If the employer took an adverse action against the employee as a result, the employer could have engaged in unlawful retaliatory conduct.

Requesting reasonable accommodations

The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to qualified applicants and employees with disabilities, unless it would impose an undue hardship. Additionally, Title VII requires employers to provide reasonable accommodations for sincerely held religious beliefs and practices, absent undue hardship. Many states have similar laws. Requesting a reasonable accommodation under these laws is an example of "protected activity."

Examples of retaliation for requesting a reasonable accommodation:

• Refusing to schedule an employee because they request a reasonable accommodation for their disability.
• Giving an employee an unfounded negative performance review because they requested a reasonable accommodation, such as extra break time for their daily prayers.

Taking job-protected leave

Many federal, state and local laws give employees the right to job-protected leave and prohibit retaliation against employees who exercise their rights to take leave.

Examples of retaliation for taking job-protected leave:

• Citing an employee for excessive absenteeism when the absences were protected under a federal, state or local leave law.
• Reducing an employee’s performance rating because they took job-protected leave.
• Refusing to hire an applicant because they took job-protected leave with a former employer.
• Suspending an employee for filing a complaint alleging the company violated their leave rights.

Reporting hazardous work conditions

Under the Occupational Safety and Health Act and similar state laws, employees have the right to file complaints about hazardous working conditions.

Examples of retaliation for reporting hazardous working conditions:

• Reducing an employee’s hours after they report unsafe conditions to the company.
• Threatening to fire an employee for complaining to the Occupational Safety and Health Administration that they weren’t provided with required safety equipment.

Working to improve wages and working conditions

Section 7 of the National Labor Relations Act gives employees, among other things, the right to act together to improve wages and working conditions and to discuss wages, benefits, and other terms and conditions of employment, with or without a union.

Examples of retaliation for working together to improve conditions of employment:

• Disciplining an employee because they discussed their own wages with co-workers.
• Firing an employee for filing a complaint with the National Labor Relations Board.
• Suspending an employee for attending a meeting to discuss joining a union.

What are some best practices to follow?

Given the rise in retaliation complaints, consider the following best practices:

• Issue clear policy statements. Include anti-retaliation provisions in equal employment opportunity, leave of absence, ethics, anti-harassment, workplace conduct and other policies where appropriate. Encourage employees to come forward with complaints without fear of reprisal, and provide a process for employees to report retaliation claims.
• Train supervisors. Provide supervisors and HR personnel with training on what types of conduct may constitute retaliation and how to respond if an employee complains of discrimination, harassment, or other unlawful conduct. Ensure they understand their responsibility to prevent and respond to retaliation complaints.
• Review employment decisions. Carefully review all employment decisions to ensure they are based on legitimate business reasons. Be consistent with how you have handled similar situations in the past, and make sure you have appropriate documentation to support all decisions.

Conclusion:

In addition to complaints and litigation, retaliation can result in a toxic work environment. Implement best practices to help prevent retaliation.