According to EEOC statistics, retaliation is the most common basis for discrimination or harassment claims against employers. Retaliation occurs when an employer takes an adverse employment action against an employee for filing a complaint or otherwise participating in protected activity. Adverse actions include firing, giving undesirable assignments, and harassment. A retaliation claim can be asserted even if the original discrimination or harassment claim turns out to be unfounded, so long as the claim was made in good faith.
In addition to preventing lawsuits, employers should avoid retaliation because of its harmful effects on the workplace. Employees often do not report perceived harassment or discrimination because they fear reprisals from supervisors or other employees. If employees don’t report and potential issues remain unresolved, it can harm productivity and produce higher turnover. If employees see that their employer does not tolerate retaliation, they are more likely to report concerns.
Retaliation claims can arise in many contexts:
Under Title VII of the Civil Rights Act of 1964, covered employers may not discriminate against employees on the basis of race, color, religion, sex, or national origin or by their association with others who are of a particular race, color, religion, sex, or national origin. Therefore, if an employee files a discrimination claim, employers should ensure that they suffer no adverse employment action because of the filing.
Under the Americans with Disabilities Act, “no person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” This means employers cannot retaliate against employees for requesting reasonable accommodations, such as a disabled cashier asking if he can sit on a stool while working.
Sexual Harassment Investigation
Sexual harassment cases are ripe for potential retaliation because the alleged harasser is often higher in the chain of command than the alleged victim. Employers should ensure that employees who feel they are being harassed have multiple avenues of reporting their concerns to management.
Retaliation for Contesting Terms of Employment
Many other federal laws and agencies afford employees protection against retaliation.
Under the National Labor Relations Act, it is illegal for employers to retaliate against employees for filing charges with the NLRB or participating in that agency’s investigations or proceedings.
The U.S. Department of Labor’s Wage and Hour Division enforces the Fair Labor Standards Act. This law requires employers to pay minimum wage and overtime. It also prohibits retaliation against employees’ efforts to assert their rights under the FLSA.
The Occupational Safety and Health Administration (OSHA) enforces various “whistleblower” provisions. These include protections from retaliation for employees raising workplace safety or health concerns.
What Constitutes Retaliation?
U.S. Supreme Court cases have clarified what the scope of adverse employment actions can constitute retaliation if they are in reaction to protected activity. This includes retaliation for oral or written complaints. The standard is whether the employer’s response would deter a reasonable employee from engaging in protected activity. Examples include:
● Strongly opposing a promotion or denying a raise
● Denying training or mentorship opportunities
● Poor performance reviews
● Exclusion from meetings or projects
● Changing shifts or work assignments
Claims of retaliation can arise even after the employment relationship has ended. Negative job references can constitute retaliation if an employer gives them because the former employee made a complaint. Refusing to provide a reference can also be retaliation, as can informing a potential future employer of protected activity. For example, the Supreme Court found retaliation for requesting disability leave when an employer described a former employee’s leave for “medical issues” in a job reference.
Retaliatory references are unlawful regardless of whether they affect the potential employer’s decision. However, whether the employee obtains the job may reduce the monetary relief available to the employee. To reduce the risk of liability, many employers adopt a neutral reference policy. By policy, these employers only give the dates of employment and final job title. Employers with these policies must apply them consistently and equally.
Zone of Interests
Adverse employment actions can be unlawful even if they are not directed against the employee who claims retaliation. The Supreme Court looks at whether the employer’s retaliatory conduct affects the employee’s “zone of interests.”
The “zone of interests” includes family members. For instance, the Supreme Court held that an employer unlawfully retaliated by terminating the husband of an employee who filed a charge of sex discrimination. The Supreme Court has not clarified whether the “zone of interests” includes friends. But it has ruled out mere acquaintances.
Employers must train supervisors and managers to avoid retaliation. These employees must know that no one can retaliate throughout or after an investigation. During an investigation, employers should inform participants of the company’s retaliation policy and encourage them to report perceived retaliation. If an employee alleges retaliation, the employer should conduct another investigation into the claim.