Filing a sexual harassment claim against your employer is a huge step, and most consider it a significant risk to take. For those wishing to maintain their position of employment, after confronting the issue of sexual harassment in the workplace, going forward can be tricky.

It’s important for victims of workplace sexual harassment to be aware of the legal rights available before, during and after filing a claim with the EEOC. In particular, both state and federal law guarantee protection against employer retaliation when employees file claims against workplace sexual harassment and other civil rights claims.

What is Workplace Retaliation?

Some workers may think that any type of retaliation from employers warrants a claim of employment rights violation, but that is not the case. In fact, Title VII of the Civil Rights Act and other employment rights laws advocate the use of retaliation protections only under a certain set of specific circumstances.

In the context of workplace sexual harassment, certain employer behaviors can trigger these laws. Retaliation claims can be based on the following employer actions:

  • An employer retaliates because an employee files a charge with the EEOC.
  • An employer retaliates because an employee participates in an EEOC or court proceeding involving discrimination.
  • An employer or other covered entity retaliates because an employee complains about discrimination.

Retaliation can be any conduct that would deter a reasonable employee from complaining about discrimination or harassment involving discrimination. This may include demotion, pay cuts, further discrimination and even termination.

Properly Handling Retaliation

What do you do when you suspect an employer’s behavior is actually retaliation? Most employees may not be sure how to properly handle retaliation after a sexual harassment claim or after complaining about harassment and discrimination.

The EEOC recently released a document entitled, “EEOC Enforcement Guidance on Retaliation and Related Issues,” and it’s a helpful resource for employees and employers alike looking The following are a few tips drawn from the EEOC guidance.

Know what’s needed to make a legal claim.

Making a legal claim of retaliation against your employer is a complicated matter. Still, it’s not difficult to get a basic understanding of the legal requirements needed in order to do so.

In order to make a legal claim of retaliation, an employee must be able to present evidence that retaliation has more likely than not occurred. In particular, an employe must show that an employer’s adverse behavior such as demoting or docking pay occurred because the employee engaged in the protected activity noted above (filed a charge with the EEOC, participated in an EEOC investigation or court proceeding, complained about discrimination).

It’s important to note that according to the EEOC, even if an employee aims its adverse actions at family members of an employee, it could still be actionable as retaliation in court. In that case, both the employee and the family member could file a legal claim.

Know what kind of activity is and isn’t retaliation.

Just as there are certain indicators of adverse behavior from employers which constitute retaliation, there are also signals that distinguish what is not retaliation. It’s important for employees considering claiming retaliation to know what exactly such determining factors are.

Keep in mind that an employer’s actions must be “materially adverse” in order for courts to recognize retaliation. This phrase has been clarified through case law to mean any action, even non work-related, “that may well have the effect of dissuading a reasonable person from performing a protected activity” such as communicating about pay or inquiring about the company grievance policy.

It also means that simple or slight behavior on an employer’s part in reaction to a protected activity may not constitute retaliation. This is important because employees often claim that trivial punishment or disagreeable treatment is retaliation, but fail to raise a successful claim.

In addition, the definition of retaliation goes beyond the materially adverse actions of the employer. An employee must also be able to show the behavior is connected to the protected activity of filing a charge of discrimination, participating in proceedings or participating in investigations.

For retaliation claims against government agencies, the employee must show the behavior would not have occurred “but for” the protected activity. This means if the court decides that the materially adverse behavior had no causal connection to the employee’s act of filing a discrimination claim against her company, or other protected activity, the case may fail in court.

For private retaliation claims, courts have ruled that a claim cannot prevail unless an employee can show the protected activity was at least a motivating factor in causing the employer’s adverse action. This slightly broader standard means that if an employee can’t prove that the protected activity played at least a motivating role in the adverse action of the employer, the claim of retaliation cannot prevail.

Revisit the EEOC charge filing process.

When an employee files a charge of retaliation with the EEOC, it’s important that he or she knows the process that will follow. Reviewing the information on the EEOC website can give employees an excellent perspective on the way a charge filed against an employer will unfold. Discussing the process with your attorney is also a great way to stay abreast of the requirement deadlines and steps that an EEOC charge will take once filed.

Handling Retaliation After Sexual Harassment Claims

Though not every sexual harassment claim will lead to retaliation from an employer, it’s wise to expect that some behavior in violation of federal or state guidelines may occur. Equipped with the right information and a strong legal team, an employee can handle the retaliation and even succeed in filing a successful claim of retaliation.

Keep in mind the most important basis for retaliation is that discrimination has occurred and an employer is behaving in a negative way in direct reaction it. Also, seek out the careful guidance of an experienced employment rights attorney for the very best results in any sexual harassment or retaliation claim.