In 2017, the Equal Employment Opportunity Commission (EEOC) received over 41,000 charges of retaliation. Those retaliation charges comprise 48 percent of all charges received by the EEOC that year – the highest percentage to date.

Since the early 2000s, the statistics reflect years of steady growth in retaliation charges, jumping from just 21,613 charges in 2000, to 41,097 in 2017. Despite this eruption in retaliation charges, the numbers for the remaining categories of charges, as well as the total amount of charges received annually, have remained fairly constant over the years.

The same retaliation boom is also reflected on the state level. In Texas, of the 8,827 charges received by the EEOC in 2017, 4,740 (53.7 percent) were for retaliation.

This increased frequency in allegations of unlawful retaliation leaves employers vulnerable and second-guessing whether they can take any disciplinary actions against employees without being subject to a potential lawsuit.

So, why has there been such an increase in retaliation charges? Possibly because in our current working environment, many employers have become hyper-focused on allegations of discrimination or harassment, but fail to realize that they may still be at risk of liability for claims of retaliation based upon actions taken towards an employee who brought up the alleged discrimination in the first place.

Employers may have the best intentions behind transferring an employee who complains that he or she is being sexually harassed away from the alleged harasser, while failing to understand that such action carries a risk of being deemed “adverse” and rising to the level of unlawful retaliation. Another explanation may be that employees are simply becoming more informed of their rights under the law, and thus are willing to protect such rights. Possibly, it’s a combination of the two?

Preventing Retaliation Claims

Whatever the cause, this upward trend leaves many employers wondering how to protect themselves from becoming part of the ever-growing statistic. Knowing and understanding the legal framework of retaliation is the first step. Below is a broad overview of some of the equal employment opportunity (EEO) federal anti-retaliation laws.

Title VII of the Civil Rights Act of 1964

There are several federal EEO statutes that protect employees from being retaliated against (i.e. punished) for participating in certain “protected activities” under each statute. The main law that the overwhelming majority of retaliation claims are brought under is Title VII of the Civil Rights Act of 1964.

In addition to prohibiting workplace discrimination and harassment based upon protected characteristics including race, color, religion, sex, and national origin, Title VII also prohibits retaliation against an employee who opposes “any practice made an unlawful employment practice” by Title VII, or participates in “an investigation, proceeding, or hearing” under Title VII. Thus, any employee who asserts his or her right to be free from workplace discrimination or harassment on the above-listed bases (by opposing unlawful employment practices, or by participating in an investigation or proceeding) has engaged in “protected activity” under Title VII.

Retaliation is considered any adverse employment action that an employer takes against an employee who has participated in such protected activity due to the fact that he or she engaged in such activity. For example, if an employee complains about workplace discrimination or harassment, an employer may not retaliate against that employee for voicing his or her complaint, even if the employer believes that such complaint is false.

The U.S. Supreme Court has declared that any negative act toward the complaining employee is sufficiently adverse if that action would be enough to dissuade a reasonable employee from making a complaint under similar circumstances. Some examples of adverse actions that have been held retaliatory under Title VII are:

  • terminating or demoting the employee,
  • transferring the employee to another position or location,
  • reducing his or her salary, and
  • denying such employee a promotion or pay raise.

While these are the most easily identifiable adverse actions, the Supreme Court has also held that more minor forms of punishment, such as receiving less desirable work assignments or poor job performance evaluations, can also constitute unlawful retaliation.

Thus, once an employer is put on notice of an employee’s complaint of unlawful harassment or discrimination (such as through an internal complaint procedure or by receiving a charge of discrimination from the EEOC), any punitive or retaliatory actions taken against that employee because of the fact that he or she complained are unlawful.

Even workplace complaints that are later deemed false still protect that employee from retaliation, so long as the complaint was reasonable and made in good faith. By simply voicing a complaint, opposing a discriminatory practice, or participating in an investigation or EEO process, that employee has engaged in “protected activity” under Title VII. Once this protected activity is triggered, employers must use caution when making any decisions which may negatively impact that complainant’s employment.

Although it may seem as though any action taken is at risk of being perceived as “retaliatory,” employers are permitted to take adverse actions that are grounded in a legitimate business purpose and unrelated to the fact that the employee complained. For example, if a complainant-employee’s job performance begins declining, the employer may still discipline that employee. Such discipline should be taken in accordance with the employer’s handbook policies or procedures and carried out only after thorough documentation of the poor performance issue.

ADA, ADEA & GINA

In addition to Title VII, several other federal statutes protect workers’ EEO rights, including the Americans With Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the Genetic Information Nondiscrimination Act (GINA). These EEO laws prohibit certain forms of discrimination, while also protecting individuals from retaliation for asserting their statutory rights.

The ADA prohibits discrimination against individuals with disabilities. Under the ADA, workers who meet the statutory definition of having a “disability” are permitted to request “reasonable accommodations” from employers. In addition, the statute makes it unlawful for employers to retaliate against employees who assert their rights under the ADA by making such requests for accommodations, voicing complaints of alleged disability discrimination, of participating in a process to vindicate their rights under the statute. Thus, any request for accommodation for a disability, whether granted or denied, is considered protected activity, meaning that any action taken that negatively affects that individual’s employment should be fully evaluated prior to execution.

The ADEA prohibits discrimination against job applicants and employees over 40 years old on the basis of age. Similar to Title VII, the ADEA also prohibits retaliation against individuals for “opposing” unlawful age discrimination or “participating” in an age discrimination investigation or proceeding.

GINA prohibits discrimination against job applicants and employees on the basis of genetic information (i.e. genetic tests, family medical history, etc.). Like Title VII and the ADEA, retaliation is prohibited against job applicants or employees who file a charge of discrimination, participate in a discrimination investigation or proceedings, or otherwise oppose unlawful discrimination under the statute.

Prevention Techniques

Understanding EEO retaliation laws is just one piece of preventing retaliation claims. Employers should also take preventive steps to put themselves in the best position to defend against any allegations of unlawful retaliation.

For optimal protection, employers should ensure that they have well-defined anti-discrimination and anti-retaliation policies in place. Managers and supervisors should be trained regarding such policies, along with how to recognize what constitutes statutorily protected activity. All employees who voice complaints of unlawful employment practices should be assured that their complaint will be taken seriously and they will not be retaliated against.

In addition, employers should be sensitive to the timing between an employee’s protected activity and any proposed discipline or termination. If such discipline or termination against an employee takes place after that employee’s protected activity, there is an increased risk of a subsequent retaliation claim.

Walking on Eggshells Not Required

Overall, upon becoming aware of an employee complaint, an employer’s response should be focused on correcting the problem (if any), ensuring that the complainant is not subject to retaliation, and preventing future workplace discrimination and harassment.

Employers do not have to walk on eggshells with a complaining employee. Disciplinary actions are permitted if warranted, backed up by sufficient documentation, and carried through according to typical company policies and procedures (so long as such policies are applied consistently to all employees).

For assistance with workplace discrimination, harassment or retaliation matters contact Clouse Brown PLLC. Our attorneys are available to counsel employers and business-owners on how to comply with anti-retaliation laws and give advice in dealing with employee complaints. We also advise employees who have been discriminated or retaliated against by an employer.

Keith Clouse

About Keith Clouse

Keith Clouse is an employment law specialist with over 25 years of experience representing senior-level and C-suite executives, business owners, physicians, and corporations in complex employment litigation, arbitration, and negotiations. High-level business executives, physicians, and other professionals consistently rely on Mr. Clouse for employment law expertise and advice on employment contracts, covenants not to compete, severance agreements, equity awards, trade secret disputes, and breach of fiduciary duty claims. He is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization. He can be reached at keith@clousebrown.com.

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