Consider this scenario: An employee has been with your company for a year and a half and has poor performance reviews. The employee files an EEOC (Equal Employment Opportunity Commission) complaint alleging sexual harassment by their manager. You terminate the employee, citing "incompatibility" with the supervisor. Now, you’re facing a retaliation lawsuit. Does it have merit? The answer is not clear-cut, but we can look at what the EEOC says on this matter.
What Is Considered Retaliation?
According to the EEOC, retaliation occurs when an employer takes materially adverse action against an individual, employee, or applicant because he or she asserted their right to be free from employment discrimination. Asserting these rights is called a “protected activity”.
It is unlawful to retaliate against an individual for these protected activities, for example:
- complaining or threatening to complain about alleged discrimination against oneself or others;
- refusing to obey an order reasonably believed to be discriminatory;
- resisting sexual advances or intervening to protect others;
- passive resistance (allowing others to express opposition);
- requesting a reasonable accommodation for disability or religion;
- complaining to management about EEO-related compensation disparities; or
- talking to coworkers to gather information or evidence in support of a potential EEO claim.
If an employee is involved in an EEOC investigation or has filed a complaint, they automatically have immunity from retaliation. This is true even if the claim turns out unfounded, as long as it was made in good faith.
Retaliation can include any negative job action, such as demotion, discipline, firing, salary reduction, or job reassignment. Depending on the circumstances, these actions too could be considered retaliatory:
- Reprimands or unnecessarily poor performance reviews;
- Verbal or physical “bullying”;
- Threats to report the employee to authorities (such as the police or immigration);
- Increased oversight and scrutiny;
- Changing the employee’s work conditions to make the person’s workday more difficult; or
- Retaliation against a family member.
When Is an Adverse Action NOT Considered Retaliation?
The employer may be able to provide evidence that an adverse move was not motivated by retaliation. For example, an employer may assert that it acted for a legitimate reason, such as poor job performance, misconduct, downsizing, and inadequate qualifications.
The employer may also be able to show evidence that:
- The challenged adverse action (such as a demotion) would have happened anyway;
- Other similarly situated employees who did not file a complaint received the same treatment; or
- The employer was not aware of the protected activity.
To avoid accusations of retaliation, it’s imperative that your business keeps accurate and detailed records. If we circle back to the example from the beginning, the employee was terminated, and there is documentation of poor performance reviews. This is the foundation for building a defense against a retaliation claim, and it can show the reason why an employer made a change to the employee’s job.
It is also important for employers to have written policies and procedures in place to address retaliation in the workforce, and to ensure all employees have received a copy of the same. The most common way to accomplish this is to have an employee handbook that is provided to each employee.
One thing is evident: You want to avoid a retaliation lawsuit. Our attorneys not only represent businesses accused of retaliating against employees but also advise businesses on how to avoid whistleblower retaliation accusations.
If you have concerns about an EEOC complaint or whistleblower retaliation claim, call us today at (713) 909-7323 to schedule your consultation.