EEOC Guidance: What Is Unlawful Retaliation Against Employees?

If you are working in a hostile work environment, it can be hard to raise objections to the discrimination you experience. Many employees rightfully fear retaliation if they speak up against illegal policies or practices by their employers. This kind of retaliation is illegal. If you face unlawful retaliation at work, you need to know your rights under the law.

In this post, I will review the recent guidelines published by the Equal Employment Opportunity Commission (EEOC) against retaliation in the workplace. I will describe what counts as unlawful retaliation against employees. I will also explain what options are available if you face retaliation at work.

Equal Employment Opportunity Laws Prevent Retaliation

EEOCEach of the equal employment opportunity laws that the EEOC enforces include portions making retaliation and related conduct illegal. Retaliation is illegal under the:

  • Civil Rights Act of 1964
  • Age Discrimination and Employment Act (ADEA)
  • Americans with Disabilities Act (ADA)
  • Rehabilitation Act
  • Equal Pay Act (EPA)
  • Genetic Information Nondiscrimination Act (GINA)

Each statute includes its own provisions regarding retaliation. The ADA also protects against interference with an employee's rights under that statute. In August 2016, the EEOC issued new "Enforcement Guidance on Retaliation and Related Issues." It explains what retaliation is, who and what is protected, and what the consequences are to employers who don't follow the law.

What is Unlawful Retaliation?

If your employer has taken an adverse employment action because you attempted to assert your rights under an equal employment law, you may have been the victim of retaliation. To file a retaliation claim, you and your employment discrimination attorney will need to demonstrate that:

  • You were engaged in a protected activity
  • Your boss took a materially adverse employment action
  • Retaliation caused the adverse action.

Who is Protected?

Retaliation is illegal no matter who your employer is. It applies to current employees, former employees (facing discrimination in their new jobs), and potential hires. It also protects against actions by an employment agency or labor union.

What is a Protected Activity?

Protected activities include lodging an internal complaint, filing a claim with the EEOC, requesting ADA accommodations, testifying in an EEOC matter, or participating in any other way with a civil rights complaint. You are also protected for opposing something you believe is discrimination. Even if you end up being wrong or the complaint is eventually unsuccessful, your participation is protected.

However, employees should beware that they cannot use a protected activity to cover up poor performance or wrongful conduct. If an employer's reason to fire you was created before you filed your complaint, the EEOC won't save you from the consequences of your actions.

What is a Materially Adverse Employment Action?

Retaliation includes any employment-related action serious that it might deter a reasonable person from engaging in a protected activity. In other words, if it is bad enough that you might think twice about filing a complaint or lodging a protest, it is a materially adverse employment action. This is a case-by-case issue, but it could include:

  • Firing
  • Failure to hire
  • Suspension
  • Passing over for promotion
  • Assigning harder work
  • Assigning less desirable hours
  • Changing a work schedule
  • Exclusion from company activities
  • Negative evaluations or warnings
  • Verbal or physical threats
  • Questioning legal work status of immigrants
  • Terminating union grievances

Even if you go ahead and do the protected activity, you may have a retaliation claim if your employer's behavior was enough to reasonably make you think not to.

How to Prove Retaliation was a Motive

Often, an employer will say that it acted based on a non-retaliatory reason (like poor performance or lack of qualifications for a job). It is up to the targeted employee to provide evidence supporting the position that retaliation was the motive behind the adverse employment action. This could include:

  • Timing between the protected activity and the materially adverse action
  • Statements made demonstrating motive
  • Comparisons to others in similar situations
  • Credibility of the employer's stated reason

Unlawful Retaliation Remedies

If you have been the victim of unlawful retaliation, an employment discrimination attorney can help you seek several kinds of relief:

  • Reinstatement
  • Back pay
  • Replacement pay (also called front pay)
  • Compensatory damages for money spent because of the retaliation
  • Punitive damages (against private employers)
  • Changes in corporate policy
  • Corporate training
  • Reporting & supervision by EEOC

Your attorney will discuss your goals with you to determine what kinds of relief will best allow you to move on with your life.

Get Help from an Employment Discrimination Attorney

If you are facing retaliation at work, it could leave you feeling like you are facing a giant. But you don't have to face it alone. Our experienced employment discrimination attorneys at Eisenberg & Baum, LLP, can help fight back against workplace retaliation. We will review your case with you and discuss all of your options.Contact us today to schedule a free initial consultation and get your case started.

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Speak with our team, for free, about your legal situation.

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