Employment discrimination refers to a circumstance in which an employee is treated less favorably than another, similar employee, solely because they belong to a protected class. It can also refer to a job candidate being discriminated against before they are even hired. The following are some examples of protected classes:
- Race and National Origin;
- Religious beliefs;
- Gender and sexuality;
- Disability, including pregnancy; and
- Veteran status.
State and federal law both prohibit public and private employers from discriminating against people who belong to a protected class. State laws may provide a more broad definition of what constitutes a protected class. Federal laws against employment discrimination include the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act, and the Americans With Disabilities in Employment Act.
Because of these specific laws that protect specific classes of employees in the workspace, it is also illegal for an employer to engage in retaliation. Employer retaliation refers to any adverse employment action taken against an employee who has filed a discrimination or harassment complaint. This also includes any negative action taken against an employee who has reported a violation of workplace law. An example of this would be if an employer fires an employee after that employee complained about being denied a promotion on the basis of their age.
What Are Some Examples of Discrimination Retaliation?
Discrimination retaliation is an especially complex form of employment discrimination. An example of this would be if an employer has either hired or fired an employee based on their race or age. If the employee is treated adversely after complaining about being harassed in the workplace, or fired, on the basis of their race or age, the employer could be liable to the employee for retaliation. If a female employee were to complain to management about being sexually harassed at work, and is later assigned to new duties with lower bonus potential, that would be another example of discrimination retaliation.
Employer actions such as those in the last example could be considered illegal. This is because employers are not to discriminate on the basis of gender, by imposing privileges or work conditions that result in the employee’s pay being impacted. Additionally, it may be considered retaliation if the employer acted in order to protect the complainant, but the results are that certain privileges are denied.
To continue this example, suppose an employer were to transfer the female employee to another department for the purpose of preventing the actor from further harassing the female employee. This actually negatively impacts the female employee because the result is that the complaining employee has lost seniority, as well as the potential for higher commissions. Although the employer may have had good intentions, the impact is that the employee is harmed by the employer’s actions. As such, those actions may be considered retaliatory.
Some other examples of discrimination relatiation include, but are not limited to:
- Declining to hire, or deciding to fire, the complainant;
- Reducing the complainant’s compensation and/or benefits;
- Moving the complainant to a different department;
- Having the complainant engage in activities outside of the scope of their employment;
- Forcing early retirement on the complainant;
- Providing negative job evaluations; and/or
- Demanding that the complainant drop or waive their legal right to sue; in exchange for a more favorable position within the employer’s organization.
How Do I Prove Retaliation in the Workplace?
To prove that you have been retaliated against, you must first establish your claim for discrimination. This will likely include demonstrating that the employer treated you differently because of your protected status, as well as that the employer acted deliberately. There are four main components to employment retaliation:
- An employee engages in a protected activity;
- The employer takes an adverse action against the employee;
- The employee belongs to a protected class and is a covered individual; and
- The adverse reaction was caused by the employee’s protected activity or class.
You will need to provide evidence that fulfills the four main components. There are many types of sufficient evidence, including but not limited to:
- Written evidence of the discrimination and/or retaliation, such as email and other communication;
- Verbal communications, such as statements made in the interview;
- Supporting documents, such as pay stubs; and/or
- Various other types of evidence, as suggested by your attorney, relevant to the specifics of your circumstances.
The court will consider your proof which establishes that the employer treated you adversely, after you complained about being discriminated against in the workplace. If you do not belong to a protected class which would form the basis of the discrimination, you could still be able to establish your claim of retaliation. If the employer acted adversely against you for participating in an investigation into a complaint of harassment, it may be considered retaliation.
Are There Steps I Can Take to Avoid Employment Discrimination Retaliation?
Employment discrimination retaliation is avoidable on the part of the employer. Some steps employers should take to avoid employment discrimination retaliation include:
- Document Each Step In the Complaint Process: The person determining the outcome of the case may consider whether there was actually retaliation, based on how seriously the employer took initial complaint of discrimination. As such, employers should have clear processes in place involving the recording of complaints, as well as documenting your response to each and every claim;
- Create a Clear Policy: This policy should clearly state against employee retaliation. These workplace policies should address workplace discrimination and harassment, as well as the consequences for retaliation against complainants; and
- Provide Training: All employers should provide workplace discrimination training, as well as sensitivity training. It is important that such trainings include information regarding the employer’s view of retaliation, and how they intend to address retaliation when it happens.
How Can I File an Employment Discrimination Retaliation Claim?
The Equal Employment and Opportunity Commission, or “EEOC,” is a federal agency that investigates claims of workplace discrimination. They have the regulatory powers to enforce various anti-discrimination laws. Generally, an employee cannot sue their employer for discrimination without first going through the EEOC.
Filing a complaint with the EEOC begins when an employee contacts them within 45 days of the alleged discrimination. If the issue cannot be resolved within 30 days, a formal complaint must be filed at an EEOC field or district office. The EEOC may offer alternative dispute resolution, or or analyze the complaint itself in order to determine whether the law supports the charge. From there, the EEOC may conduct an investigation and present an offer or solution to the employee.
The employee can appeal the decision, or file a civil action in a state or federal court. Before doing so, the employee must have obtained a “right to sue” letter from the EEOC. Because the process is so detailed and involved, complainants would likely benefit from hiring a work retaliation lawyer to handle their case. However, work retaliation lawyers are not necessary for filing with the EEOC.
When Should I Consult an Attorney for Help with an Employment Retaliation Lawsuit?
If you are facing employment retaliation, you should consult with a work retaliation lawyer, such as an employment attorney in your area. An experienced employment retaliation attorney can ensure you are aware of your rights, help gather relevant evidence, and prepare you for any defenses the employer may use. Additionally, the attorney you select will represent you in court as needed.