State and federal law prohibit employers, both private and public, from discriminating against persons within a protected class either during the hiring process or during the term of their employment. Federal laws against discrimination in employment include the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act and the Americans with Disabilities in Employment Act.
There are different kinds of protected classes, though the more popular include those on the bases of age, race, gender, disability, and religious beliefs. State laws may provide for a broader definition of protected class.
Because there are specific laws protecting classes of employees in the workplace, it is also against the law for an employer to engage in retaliation — i.e. adversely take action against the employees after they have complained. For example, an employer may find itself in trouble if it fires an employee after they complain that they were denied a promotion on the basis of age.
What are Some Examples of Discrimination Retaliation?
Employers may make decisions to hire or fire someone on the bases of characteristics such race or age, for example. If a person is adversely treated after complaining to their employer about being harassed in the workplace on the bases of their age or race, the employer may be further liable to the employee for the retaliation.
In a sample scenario, a female employee complains to management about being sexually harassed and is later assigned to new responsibilities and duties with lower bonus potential.
This may be illegal because employers may not discriminate on the basis of gender by imposing privileges or work conditions that can result in impact on pay. Moreover, it may still be considered retaliation if the employer’s action is taken to protect the complainant but results in denial of certain privileges or favorable work conditions for the complainant.
For example, an employer transfers the female employee to another department to prevent the bad actor from continuing the harassment. The result is that the complaining employee has lost seniority and the potential for higher commissions.
In spite of what might be the best intentions of the employer, the employer’s actions adversely impacted the employee and may be considered retaliatory.
Though not exhaustive, if an employer engages in the following acts, the action may be considered retaliatory:
- Declining to hire or deciding to terminate the complainant;
- Reducing compensation or benefits;
- Having the complainant moved to a different department;
- Engaging the complainant in activities outside the scope of employment for which they were hired;
- Forcing early retirement;
- Providing negative job evaluations; and/or
- Demanding that the complainant drop or waive their right to sue in exchange for a more favorable position in the employer’s organization.
What Do I Need to Show Employment Discrimination Retaliation?
To prove that you have been retaliated against, you may first need to establish your claim for discrimination. That will include demonstrating that the employer treated you differently because of your protected status and that the employer’s treatment was deliberate.
Thereafter, the court will consider your proof establishing that the employer adversely treated you after you complained about being discriminated against in the workplace. If you are not a member of a protected class who has been discriminated against, you still may 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.
How Can I File an Employment Discrimination Retaliation Claim?
You may begin taking action against a discriminatory employer by filing a claim with the Equal Employment Opportunity Commission (EEOC).The EEOC will conduct an investigation into your claim and engage the parties in an attempt to resolve the complaint. In some states, you may be required to exhaust the EEOC process first before filing your own lawsuit in court.
Are There Steps I Can Take to Avoid Employment Discrimination Retaliation?
Some common strategies employers can undertake to avoid retaliation in the workplace include the following:
- Document Each Step in the Complaint Process: Oftentimes the trier of fact may make a determination whether there was retaliation or not depending how seriously the employer took the initial complaint of discrimination. Make sure you have clear processes in place to record complaints and to document your response to each complaint.
- Create a Clear Policy Against Employee Retaliation: Many companies are proactive and have in place policies that address workplace discrimination and harassment. It is essential that those employee policies also address the consequences for retaliation against anyone who makes a workplace discrimination complaint.
- Providing Workplace Discrimination Training:. It is also customary for employers now to provide sensitivity and discrimination training. It is equally important that these training seminars include information about how the employer views and handles retaliation.
Should I Consult an Attorney for Help with an Employment Retaliation Lawsuit?
If you are the victim of retaliation in the workplace, you may benefit from a consultation with an employment lawyer. Also, if you are an employer who would like to create a process for responding to discrimination and retaliation complaints, an employment attorney may also be helpful.