Published Date: 06/09/2014
By George Ports
CAI's Advice & Resolution Team has often advised members to not take any adverse action against an employee, unless the action can be clearly supported, who has filed an employment discrimination charge with the Equal Employment Opportunity Commission (EEOC). The EEOC holds that an employer may not fire, demote, harass or otherwise “retaliate” against an individual for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination.
The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age and disability, as well as wage differences between men and women performing substantially equal work, also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding.
In addition to the protections against retaliation that are included in all of the laws enforced by EEOC, the Americans with Disabilities Act (ADA) also protects individuals from coercion, intimidation, threat, harassment, or interference in their exercise of their own rights or their encouragement of someone else’s exercise of rights granted by the ADA.
There are three main terms that are used to describe retaliation. Retaliation occurs when an employer, employment agency, or labor organization takes an adverse action against a covered individual because he or she engaged in a protected activity. These three terms are described below.
An adverse action is an action taken to try to keep someone from opposing a discriminatory practice or from participating in an employment discrimination proceeding. Examples of adverse actions include:
- employment actions such as termination, refusal to hire and denial of promotion;
- other actions affecting employment such as threats, unjustified negative evaluations, unjustified negative references, or increased surveillance; and
- any other action such as an assault or unfounded civil or criminal charges that is likely to deter reasonable people from pursuing their rights.
Adverse actions do not include petty slights and annoyances, such as stray negative comments in an otherwise positive or neutral evaluation, “snubbing” a colleague, or negative comments that are justified by an employee’s poor work performance or history.
Even if the prior protected activity alleged wrongdoing by a different employer, retaliatory adverse actions are unlawful. For example, it is unlawful for an employee’s current employer to retaliate against him for pursuing an EEO charge against a former employer.
Of course, employees are not excused from continuing to perform their jobs or following their company’s legitimate workplace rules just because they have filed a complaint with the EEOC or opposed discrimination.
For more information about adverse actions, take a look at the EEOC’s Compliance Manual Section 8, Chapter II, Part D.
Covered individuals are people who have opposed unlawful practices, participated in proceedings, or requested accommodations related to employment discrimination based on race, color, sex, religion, national origin, age or disability. Individuals who have a close association with someone who has engaged in such protected activity also are covered individuals. For example, it is illegal to terminate an employee because his spouse participated in employment discrimination litigation.
Individuals who have brought attention to violations of law other than employment discrimination are NOT covered individuals for purposes of anti-discrimination retaliation laws. “Whistleblowers” who raise ethical, financial or other concerns unrelated to employment discrimination are not protected by the EEOC enforced laws.
Protected activity includes:
- complaining to anyone about alleged discrimination against oneself or others;
- threatening to file a charge of discrimination;
- picketing in opposition to discrimination;
- refusing to obey an order reasonably believed to be discriminatory;
- filing a charge of employment discrimination;
- cooperating with an internal investigation of alleged discriminatory practices; or
- serving as a witness in an EEO investigation or litigation.
A protected activity can also include requesting a reasonable accommodation based on religion or disability.
Examples of activities that are NOT protected include:
- actions that interfere with job performance so as to render the employee ineffective; or
- unlawful activities such as acts or threats of violence.
For more information about Protected Activities, see EEOC’s Compliance Manual, Section 8, Chapter II, Part B – Opposition and Part C – Participation. If you have questions about retaliation protections, please contact a member of CAI's Advice & Resolution Team at 919‑878‑9222 or 336‑668‑7746.