Nondiscrimination | 

Retaliation: What Actions Can Land You in Hot Water?

In 2017, 48.8% of the charges filed with the Equal Employment Opportunity Commission (EEOC) included a claim of retaliation, up from 34.3% in 2007. Over the past few years, retaliation has become the most frequently cited EEOC complaint. The following is an overview of retaliation and related best practices.

What is Retaliation?

Retaliation is when an employer takes an "adverse employment action" against an applicant or employee because he or she 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 the Title VII of the Civil Rights Act, and other federal, state, and local nondiscrimination laws, individuals have the right to oppose conduct that they reasonably believe constitutes an unlawful employment practice, such as discrimination. They also have the right to make a charge, 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 she filed a sexual harassment complaint
  • Refusing to consider an applicant because he had filed a discrimination lawsuit against his 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 that he or she 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 she requests a reasonable accommodation for her disability
  • Giving an employee an unfounded negative performance review because she requested a reasonable accommodation for her 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 she took job-protected leave
  • Refusing to hire an applicant because he took job-protected leave with a former employer
  • Suspending an employee for filing a complaint alleging the company violated his 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 he or she reports unsafe conditions to the company
  • Threatening to fire an employee for complaining to the Occupational Safety and Health Administration that she wasn’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 he discussed his wages with co-workers on social media
  • 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

Best Practices:

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.
  • 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:

Various federal, state, and local laws prohibit employers from retaliating against applicants and employees for exercising their rights under the law. Implement best practices to help ensure compliance and minimize anti-retaliation claims.

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