Employer Retaliation

Employer retaliation is the most frequently alleged basis of discrimination in the federal sector and the most common discrimination finding in federal sector cases. 

The EEO laws prohibit punishing job applicants or employees for asserting their rights to be free from employment discrimination including harassment.  Asserting these EEO rights is called “protected activity,” and it can take many forms.  For example, it is unlawful to retaliate against applicants or employees for:

• Filing or being a witness in an EEO charge, complaint, investigation, or lawsuit
• Communicating with a supervisor or manager about employment discrimination, including harassment
• Answering questions during an employer investigation of alleged harassment
• Refusing to follow orders that would result in discrimination
• Resisting sexual advances, or intervening to protect others
• Requesting accommodation of a disability or for a religious practice
• Asking managers or co-workers about salary information to uncover potentially discriminatory wages.

Participating in a complaint process is protected from employer retaliation under all circumstances. Other acts to oppose discrimination are protected as long as the employee was acting on a reasonable belief that something in the workplace may violate EEO laws, even if he or she did not use legal terminology to describe it.

When is it not “employer retaliation”?

Engaging in EEO activity, however, does not shield an employee from all discipline or discharge. Employers are free to discipline or terminate workers if motivated by non-retaliatory and non-discriminatory reasons that would otherwise result in such consequences.  However, an employer is not allowed to do anything in response to EEO activity that would discourage someone from resisting or complaining about future discrimination.

For example, depending on the facts, it could be retaliation if an employer acts because of the employee’s EEO activity to:

• Reprimand the employee or give a performance evaluation that is lower than it should be
• Transfer the employee to a less desirable position
• Engage in verbal or physical abuse
• Threaten to make, or actually make reports to authorities (such as reporting immigration status or contacting the police)
• Increase scrutiny
• Spread false rumors, treat a family member negatively (for example, cancel a contract with the person’s spouse)
• Make the person’s work more difficult (for example, punishing an employee for an EEO complaint by purposefully changing his work schedule to conflict with family responsibilities).

For more information, Questions and Answers: Enforcement Guidance on Retaliation and Related Issues, https://www.eeoc.gov/laws/guidance/retaliation-qa.cfm.

Have your employee rights been violated?

If you have been a victim of employer retaliation, you want an experienced employee rights attorneys on your side to advocate and counsel you through the process to resolve the issue and/or represent you in court.

Give us a call today at (720) 515-6165.