While laws against harassment and discrimination are in place to protect employees, some claimants soon find themselves the subject of retaliation: being fired, demoted, arassed, or otherwise subjected to unfair treatment by their employers as a result of their allegations.
The U.S. Equal Employment Opportunity Commission (EEOC) has put regulations in place to prohibit retaliatory actions; however, it continues to be a problem. In 2016, the Commission issued enforcement guidance on retaliation for the first time since 1998, in a 76-page document titled “Enforcement Guidance on Retaliation and Related Issues.”
For employers, it’s important to have a solid understanding of how the Commission defines retaliation and how to ensure that employees dealing with discrimination issues are protected from retaliatory actions.
The EEOC has stated that “retaliation occurs when an employer takes a materially adverse action because an individual has engaged in, or may engage in, activity in furtherance of the EEO laws the Commission enforces.”
The Commission goes on to affirm that a valid retaliation claim has three elements:
Adverse actions may include
The Commission also states that “materially adverse actions” include actions outside the workplace — actions that have no tangible effect on employment, or that take place exclusively outside of work, as long as they “might well dissuade a reasonable person from engaging in protected activity.”
Even if an employee can show evidence of participation in protected activity on his or her part and materially adverse actions on the employer’s part, causality must still be shown to demonstrate violation of EEOC anti-retaliation provisions.
To show causality, the employee may cite, for example,
To discourage retaliation against employees involved in discrimination or harassment claims, employers will want to consider a proactive approach:
To learn more, visit the following EEOC pages: