Often employers are greatly opposed to an employee’s charges and complaints about discrimination. The fact that these charges involve taking responsibility for negative company actions is only part of the issue. Discrimination charges, whether proven or not, can raise costs considerably and may sometimes have a negative effect on company image and morale.
Still, retaliation is against the law, and employees should be aware that an employer is not allowed to harass or retaliate in any way when an employee reports discrimination. This includes employer decisions about employee pay, benefits, promotion, job assignments and training. In fact, Title VII is quite thorough in prohibiting retaliation in any form, even if the claim of discrimination is not proven in the end.
Definition and Elements of Retaliation
The definition of retaliation involves three elements:
- Adverse action against an employee
- Taken by covered individuals,
- Due to a protected activity.
Adverse action describes when an employer makes a decision based on an employee’s claim, complaint or time involved resolving employment discrimination disputes. Beyond refusals to hire, demotion or even pay cuts, some employers engage in threats, increased surveillance, negative evaluations and even assault. All these actions are directly prohibited under Title VII’s retaliation provisions.
A covered individual is generally an employee who has complained, filed a charge or who needs or has taken time off to resolve an employment discrimination dispute. The breadth of covered individuals is expansive. The term even covers those closely associated with affected employees, including spouses or children. Only when an employee raises issues not in violation of Title VII, such as whistle blowing, is the individual not considered a “covered” individual.
According to the EEOC, employers are precluded from retaliating in three instances constituting protected activity:
- Due to an employee filing a charge of discrimination
- Due to an employee’s complaints about discrimination on the job and/or
- Due to an employee’s involvement in discrimination proceedings such as settlements or court time for law suits.
Each of these activities are protected under Title VII. Not included in the protected activities element are an employee’s unlawful or criminal acts or actions that negatively affect job performance.
Examples of Protected Activity
Protected activity can take on many forms, and examining a few examples can help understand the kind of behavior that may warrant a retaliation claim. Most protected activity consists of opposition to discriminatory practices based on any of the protected categories listed in Title VII. Keep in mind that employees and other covered entities engaging in protected activity still need to prove that an employer took adverse action based on the activity in order to establish a primae facie case for retaliation.
Examples of protected activity include:
- Threatening to file a claim, lawsuit or charge due to perceive discrimination
- Complaining to a supervisor, manager or coworkers about discrimination to oneself or others on the job
- Refusal to carry out a discriminatory order or set of instructions
- Requesting reasonable accommodation for disabilities or requesting religious accommodation
This list is not exhaustive. It’s important to note that retaliation laws extend across all forms of employment discrimination including age, race, color, national origin, gender, and disability. A wide variety of protected activities may exist differing according to the type of discrimination or the type of job involved.
Filing a Claim with the EEOC
An experienced employment discrimination lawyer can help with filing a retaliation charge with the EEOC or with filing a retaliation lawsuit. Since retaliations claims frequently involve some initial act of discrimination, they are often filed together with discrimination claims or law suits. However, retaliation claims do not have to be coupled with discrimination claims. They can also be filed alone.
Typically, an employee has 180 days from the date of retaliation to file a claim with the EEOC. Filing a charge begins with a conversation with an intake specialist who will take preliminary information necessary to file a retaliation claim. Next, an investigator examines the claim and collects further information via employment records and interviews to determine whether a violation of has occurred.
If the EEOC determines that a violation has occurred, the agency may seek a resolution of the problem though a settlement or other remedy such as filing a lawsuit on the employee’s behalf. When no violation is found, the EEOC issues a right to sue notice, allowing an employee to file suit in a court of law.
Retaliation claims with the EEOC are the highest they have ever been at 31.4% of all Title VII discrimination types. The number of charges has steadily risen since 2003 and is one of the fastest growing EEOC charge types. in 2012, 8.3% of retaliation claims ended in settlement. The monetary benefits for retaliations charges filed at the EEOC totaled $177.4 million.
These numbers reflect a fact that many employers may be slow to admit: retaliation in the workplace is common. Without the necessary protections in place against it, employees would struggle against a chilling effect, reluctant to file even rightful claims of discrimination for fear of adverse action. The necessity of this particular type of protection is reflected in its inclusion in almost every employment discrimination statute, including both federal and state law.
If you think you’ve been a victim of retaliation on the job, consider speaking with a competent and experienced employment discrimination attorney first. A seasoned lawyer can help with an analysis of the law to determine a good case for retaliation and can assist with filing an EEOC claim. This help is crucial to getting the justice you deserve. Contact Shegerian & Associates today to learn more about retaliation claims and the best possible way to successfully resolve your case.