Sally, a probationary EMT, comes to you, the service manager, with a complaint about sexual harassment. She claims that one of your best supervisors, Bill, keeps hitting on her and making sexually suggestive comments about her in front of other staff members. You talk with her, but don t take any immediate action on her complaint.
The next thing you know, you find a formal complaint in your mailbox from the Equal Employment Opportunity Commission (EEOC). Sally is alleging discrimination and sexual harassment against the company. You tell Bill about the complaint, and he says the allegations are a bunch of crap. Bill then tells another supervisor that he will make Sally s life miserable for filing the complaint. Bill starts to keep track of everything Sally does wrong in a special notebook. He doesn t keep a similar notebook about male employees, and male employees are not disciplined for the same infractions for which Sally is reprimanded.
After two weeks, Bill tells her she s fired because of performance issues and policy violations. Further investigation reveals that there was no merit to Sally s claim of discrimination and sexual harassment, but she has now filed a second complaint with the EEOC, alleging that she was terminated because she exercised her rights under the law in filing the complaint with EEOC.
Does Sally have a valid legal claim? Probably so.
In addition to protection from a wide range of discriminatory actions, most federal and state discrimination laws also provide protection to employees when adverse action is taken against them for exercising their rights under the law. The number of retaliation suits has been rising at an alarming rate in recent years, and a number of them could have been avoided had the employer handled the situation differently.
According to the most recent statistics from the EEOC, employment retaliation claims have more than doubled from 11,096 in 1992 to 22,740 charges of retaliation received in 2004. Last year, retaliation was the single most common basis for suits filed with the EEOC more common than sexual discrimination, racial discrimination and age discrimination.
Federal law prohibits employers from firing, demoting or otherwise retaliating against an employee. Retaliation occurs when an employer takes an adverse action against an employee because they took part in a legally protected activity, such as filing a formal complaint with the government, participating in a government investigation as a witness or assisting a coworker in filing a complaint. Even simply opposing unlawful practices of an employer may have anti-retaliation protection.
Examples of adverse actions include termination, refusal to hire, denial of promotion, threats, unjustified negative evaluations or references, increased surveillance or salary reduction.
Employees may oppose a practice they believe to be unlawful discrimination. Telling an employer that you believe they re engaging in prohibited discrimination may be protected activity under the law. This type of opposition is protected from retaliation if it s based on the employee s good-faith belief that the employer is violating anti-discrimination laws and the opposition is reasonable.
Examples include complaining to management about alleged discrimination, threatening to file a charge of discrimination, picketing in opposition to discrimination or refusing to obey an order reasonably believed to be discriminatory. Further, employees engage in protected activity when they participate in an employment discrimination proceeding by filing a charge of employment discrimination or cooperating with an investigation. In the case mentioned above, Sally filed a formal complaint with the EEOC, which is a protected activity.
For a retaliation suit, the law requires an employee to show a causal connection between the adverse employment action and the protected activity. This connection is often shown by merely demonstrating that the adverse action by the employer occurred fairly soon after the employee participated in the protected activity. This subjectivity makes claims often difficult to defend.
In our example, Sally was terminated within two weeks after she filed her discrimination claim with the EEOC timing that could lead to an inference that the filing of the complaint was what prompted her termination. What other facts provide strong circumstantial evidence that the employer unlawfully retaliated against Sally? First, we have the smoking gun comment by Bill who told another supervisor he would make her life miserable. Then, there is the special notebook in which he logs only Sally s infractions, and the fact that male coworkers aren t disciplined for the same infractions.
Eight Simple Rules
For these reasons, it s important to take steps to avoid both the costs and the damage to reputation from retaliation claims.
Virtually all major federal discrimination statutes contain anti-retaliation provisions prohibiting an employer from taking an adverse action against an employee. A few are listed below:
ANTI-RETALIATION LAWSStatuteAuthorityProtected ActivityAmericans with Disabilities Act (ADA)42 USC 12203Persons who oppose an act of disability discrimination or make a charge or who assist, testify, participate in an investigation, proceeding, or hearing under this act are protected from employer retaliation.Equal Employment Opportunity Act (Title VII)42 USC 2000e-3(a)Employees, applicants, or labor organization members who oppose unlawful employment practices or who make a chare, or who testify, assist, or participate in a proceeding, investigation, or hearing are protected from employer retaliation.Fair Labor Standards Act/Equal Pay Act (FLSA/EPA)29 USC 215(a)(3)Employees who file any complaint or institute or cause to be instituted any proceeding under the FLSA or EPA or testify in any such proceeding, or have served on an industry committee are protected from employer retaliation.False Claims Act (FCA)31 USC 373(h)Employees who act lawfully in furtherance of an action under this section, including investigation for, initiation of, testimony for, or assistance in an action filed by or on behalf of the U.S. are protected from employer retaliation.Family Medical Leave Act (FMLA)29 USC 2615 (a)(2), 2615(b)Persons who file a charge, give information, or testify in an inquiry or proceeding are protected from employer retaliation.Occupational Safety & Health Act (OSHA) & Health Act (OSHA)29 USC 660(c)Employees who file a complaint or who institute or testify in any proceeding under this Act are protected from retaliation under 660(c)(1).Uniformed Services Employment & Reemployment Rights Act (USERRA)38 USC 4311Persons who (1) commence an action to enforce a protection afforded any person under this Act, (2) testify or otherwise made a statement in or in connection with any proceeding under this Act, (3) assist or otherwise participate in an investigation under this Act, or (4) exercise a right provided for in this Act are protected from employer retaliation.