While laws against harassment and discrimination are in place to protect employees, some claimants soon find themselves the subject of retaliation: being fired, demoted, harassed, 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.
What Is Retaliation?
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:
- It involves a protected activity, usually interpreted as a claim of harassment or discrimination.
- The employer has taken materially adverse action, which the Commission defines as “any action that might well deter a reasonable person from engaging in protected activity.”
- There is a causal connection between the protected activity and the adverse action.
Examples of Retaliatory Activity (“Adverse Actions”)
Adverse actions may include:
- Denial of job benefits
- Denial of promotion
- Refusal to hire
- Work-related threats
- Negative or lowered evaluations
- Transfers to less desirable positions or locations
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.”
Proving a Casual Connection
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,
- “Suspicious timing” between the protected activity and the materially adverse actions
- Verbal or written statements indicating retaliatory intent
- Evidence that the employer showed more favorable treatment toward an employee in a similar situation who was not involved in a protected activity
- Inconsistent or changing explanations of the adverse activity
Preventing Retaliation in Your Workplace
To discourage retaliation against employees involved in discrimination or harassment claims, employers will want to consider a proactive approach:
- Make sure that your employee handbook clarifies your anti-retaliation policy, including an explanation of what retaliation is, concrete examples of adverse activities, and an explanation of the disciplinary consequences of retaliation, up to and including termination.
- Train your employees on your anti-retaliation policy as part of your regular anti-discrimination and anti-harassment training.
- Offer employees safe, confidential channels for reporting adverse activity.
- Take steps to encourage a civil workplace where all employees feel respected.
To learn more, visit the following EEOC pages: