Congress has passed several acts intended to end workplace discrimination and protect certain employee activities. Some of these are Title VII of the Civil Rights Act of 1964, the Equal Pay Act, the Age Discrimination in Employment Act (ADEA), and the American with Disabilities Act (ADA). These acts prohibit employer retaliation that might result when an employee files a discrimination charge. In short, employer retaliation refers to any adverse employment action taken against an employee who has filed a complaint of discrimination, harassment, or a violation of workplace law.
Because of these protections, employers are prohibited from discouraging or stopping employees from participating in any investigations. This is regardless of whether the investigation is in-house or conducted by the government. Retaliation or adverse action is also prohibited by managers or fellow employees. Under federal law, it is also illegal for an employer to discharge an employee from their position in response to the employee exercising their rights.
Discrimination retaliation can include but is not limited to:
- Declining to hire a claimant;
- Terminating the claimant;
- Reducing the claimant’s compensation or benefits;
- Having the claimant moved to a different department against their will;
- Requiring the claimant to participate in activities outside of their scope of employment;
- Forcing early retirement;
- Providing unnecessarily negative job evaluations;
- Demanding that the claimant drop or waive their right to sue in exchange for a more favorable position in the employer’s organization; or
- Increased surveillance of the claimant.
Importantly, the law does not punish inaction, or define social etiquette. For example, ignoring a colleague is not prohibited or considered to be adverse action under employment laws.
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.
Simply put, a protected class is a group of people who qualify for specific special protections under a law or policy. A person may not be discriminated against based on the following characteristics:
- National origin;
- Religious beliefs;
- Pregnancy; or
- Veteran status.
The Equal Employment Opportunity Commission (“EEOC”), oversees the enforcement of anti-discrimination laws as they apply to employment. The above mentioned classes are federally protected. Further, many states also protect people on the basis of:
- Gender identity;
- Sexual orientation;
- Political ideology; and
- Service in state militia.
Groups that are not considered to be protected classes include:
- Education level;
- Economic class;
- Social membership;
- Undocumented immigrants; or
- Those with criminal records.
Protected activities are those that an employee is legally able to participate in, without fear of retaliation from their employer. Some examples of protected activities include:
- Confronting their employer about discrimination;
- Threatening to file a charge of discrimination;
- Threatening to exercise other legal rights;
- Striking outside of their office;
- Refusing to obey any discriminatory orders; or
- Assisting authorities in investigations.
In order for an activity to be protected, it must be legal. Unlawful activity is not protected. This includes criminal activity such as theft, or harassment. A common example of harassment is the use of racial slurs. An employee need not oppose discrimination against themselves in order to be protected from adverse actions or retaliation. The employee could be opposing discrimination against a coworker and remain protected by retaliation laws.
Employers are, of course, entitled to defending themselves against retaliation claims. The effectiveness of these defenses will differ based on their state’s laws.
First and foremost, the employer may claim that the adverse action was not actually caused by the employee’s protected activity. Proving causation will be the most difficult part for an employee making a retaliation claim. This is because an employee cannot be fired for complaining or acting against discrimination, but they can be fired for poor job performance.
Second, even if the adverse action is connected to the employee’s protected activity, the employer may still claim that the adverse action is actually necessary in order to prevent the employee from taking unlawful action against the employer. An example of this would be an employee being removed from their position despite the fact that it is legally retaliation, if the employer can prove that the employee would use their position to sabotage the employer’s operation.
It is important to consult with an attorney to understand your state’s laws in order to determine the best defense against a retaliation claim. This is especially true in the case of the second defense example, as it is a recent development in employment law.
As previously mentioned, state laws vary on protected classes, protected activities, and defenses to employment retaliation. Therefore, if you are facing employment retaliation or if you are an employer needing to defend yourself against a retaliation claim, you should consult with a well qualified and knowledgeable employment attorney.
An experienced employment law attorney can help you understand your state’s laws, as well as you best course of legal action. Additionally, they may represent you in court as needed.