The 411 on Retaliation Claims

The 411 on Retaliation Claims

The Equal Employment Opportunity Commission (EEOC) is taking action against employer retaliation in cases of discrimination alleged by employees. It’s important to implement best practices and informing your employees with valuable information as to avoid any retaliation claims.

What is a retaliation claim?

A retaliation claim is when an employee or job applicant is punished for filing a complaint to their employer or federal agency concerning: discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. Laws protect employees from discrimination based on race, color, sex, religion, national origin, age, disability and genetic information and also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding.

Here are some examples of “Protected Activities” which are unlawful to punish employees for:

  • Filing or being a witness in an EEO charge, complaint, investigation, or lawsuit
  • Communicating with a supervisor or manager about employment discrimination, including harassment
  • Answering questions during an employer investigation of alleged harassment
  • Refusing to follow orders that would result in discrimination
  • Resisting sexual advances, or intervening to protect others
  • Requesting accommodation of a disability or for a religious practice
  • Asking managers or co-workers about salary information to uncover potentially discriminatory wages

A successful retaliation claim includes 3 elements. First and secondly, the employee engaged in a “protected activity” and the employer took an “adverse employment action” against the employee. The employee doesn’t need to be fired in order to have a successful retaliation claim. Adverse actions include giving the employee an unwanted transfer or a demotion, shouting at or ignoring the employee, or taking away or increasing duties by a significant amount. Thirdly, a connection must be found to link the two actions between employee and employer.

The following list of 5 practices can help reduce the risk of violations:

  1. Be sure to have written Employer Policies
  2. Provide manager and employee training. (Training should include helping individuals understand the behaviors associated with retaliation and which behaviors are unlawful.)
  3. Access to anti-retaliation advice and individualized support for employees, managers, and supervisors
  4. Be sure to have proactive follow-up
  5. Review of Employment Actions to Ensure EEO Compliance

If you have any questions or are interested in more detailed information you can visit the Equal Employment Opportunity Commission’s website at https://www.eeoc.gov/laws/guidance/retaliation-qa.cfm.

 

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