A claim of retaliation can be successful even when the original claim of discrimination based on race, color, sex, religion, national origin, age, disability, or genetic information fails to establish a violation of law.   The same laws – federal and typically state laws – that prohibit discrimination based on race, color, sex, religion, national origin, age, disability or genetic information also prohibit retaliation against individuals who oppose discrimination or participate in an employment discrimination proceeding.

Why are the laws written this way? Well, if employees are unwilling to come forward and speak out or are unwilling to participate when someone else has alleged a complaint of discrimination, then discrimination cannot be addressed.  In other words, retaliation is illegal because it has a “chilling” effect on the willingness of individuals to come forward.

Employment protections

Individuals who file a claim believing they have experienced discrimination are protected. Individuals who are interviewed, or give statements, or who testify about the alleged wrongful employment action are also protected.

What kind of “participation” activity is protected?

1. Filing a charge, internal complaint, or lawsuit alleging discrimination;
2. Being a witness in an investigation or formal proceeding of a charge or lawsuit;
3. Communicating with a manager or supervisor about discrimination or harassment;
4. Answering questions during an employer investigation of discrimination or harassment;
5. Refusing to follow company practice, policy, or management orders that would result in discrimination;
6. Resisting sexual advances, or intervening to protect others;
7. Requesting a disability or religious accommodation;
8. Asking managers or co-workers about salary information to uncover potentially discriminatory wages.

This is not a complete list. Any activity that brings discrimination to light is protected under discrimination laws. Each of these examples describes behavior that must be protected so that discrimination in the workplace can be investigated and eliminated.

Examples of retaliatory actions

What kind of action against an employee will likely be considered “retaliatory”?  A company cannot fire, demote, harass or otherwise retaliate against a person for engaging in protected activity. The following are examples where the EEOC found retaliation:

1. Manager placed information about prior discrimination complaints in an employee’s personnel file to prevent her from obtaining a promotion;
2. Two panelists who were interviewing candidates for a promotion were involved in either current or prior discrimination complaints filed by one of the employees;
3. Employer took away a perk (use of a company car) from an employee who had recently filed a discrimination claim;
4. Employee was given a lower performance appraisal than is warranted;
5. Employee was transferred to a less desirable position;
6. Employee received increased scrutiny;
7. Management made work more difficult, like purposefully changing a work schedule to conflict with family responsibilities; and,
8. Management engaged in verbal or physical abuse with the employee.

Close proximity in time is also a factor reviewed by courts and the EEOC to determine when an action against an employee is retaliatory. The closer in time the alleged retaliatory behavior is to the charge or the participation in the discrimination proceeding, the more likely it will be found to be retaliation.

If someone files a charge, or participates in a charge, are they protected forever? No. Employers are free to discipline or terminate workers if the reason is non-discriminatory and non-retaliatory. However, the burden of proof will be on the employer to establish a non-discriminatory and non-retaliatory reason for the action.

The EEOC will file suit against companies who allegedly retaliate. In a recent news release, the EEOC announced it had filed suit against TCI of Alabama, a recycler of electrical equipment at a plant in Pell City, Alabama. According to the lawsuit, after a female filed a charge of discrimination with the EEOC for failure to hire based on gender, TCI interviewed a management employee who supported the allegation saying TCI had a longtime practice of not hiring female laborers. When the company was unsuccessful in getting the manager to change his statement, TCI terminated his employment. The EEOC filed suit on his behalf seeking money damages, compensatory and punitive, and injunctive relief to prevent such unlawful conduct in the future.

Best practices

1. Have a policy that your company will not tolerate discrimination or retaliation; and that employees who come forward in good faith will be protected;
2. Have a policy that provides several ways for employees to complain about discrimination (e.g., hotline, HR, certain executives);
3. Investigate every complaint; and,
4. Document performance so that when you want to terminate an employee who has complained or participated, you will have documentation of poor performance before the charge of discrimination was filed.