November 29, 2021 | Category: Compliance, Retaliation

Most employers have some familiarity the concept of retaliation as it relates to federal equal employment opportunity (“EEO”) laws.  An anti-retaliation policy is typically included within a company’s harassment and discrimination policies. However, some time may have passed since you as an employer or human resources representative have reviewed your understanding of retaliation. It very important for a company to understand and educate their employees about retaliation because retaliation claims counted for 55.8% of claims filed with the Equal Employment Opportunity Commission (“EEOC”) in 2020.  

Retaliation occurs when an employer takes a materially adverse action because an applicant or employee has asserted their rights under equal employment opportunity laws.  When an applicant or employee asserts their EEO rights, it is called a protected activity. Protected activity is usually either participating in the EEO process, such as filing a complaint or participating in any way in an EEO matter, or when an individual reasonably opposes conduct made unlawful by an EEO law. Retaliation typically occurs in the workplace when protected activity is followed by an adverse action. However, there can be some cases where retaliation happens before any protected activity occurs. One instance is when an employment policy itself can be retaliatory if it discourages employees from exercising their EEO rights.

The protections against retaliation in the workplace apply to employers, employments agencies, and labor organizations that are covered by EEO laws. Most EEOC laws apply to companies that have fifteen (15) or more employees. Further, the protections from retaliation not only apply to all existing employees (full-time, part-time, temporary, probationary, and seasonal), but they also apply to applicants and former employees. These individuals are protected from retaliation regardless of their citizenship or work authorization status. As such, even if an employer suspects an employee is undocumented but does not attempt to verify applicant’s authorization to work and later the same worker files an EEO complaint for sexual harassment. If the employer then threatens to expose the workers’ immigration status because they filed the EEO complaint, the employer will have violated the ban on retaliation.

So, when does an employer’s action rise to the level of retaliation? Essentially, retaliation includes any employer action that would be considered materially adverse. The EEOC has stated that materially adverse means any action that might deter a reasonable person from engaging in a protected activity. Materially adverse actions include not only employment actions such as denial of promotion, demotion, and suspension, but also include an employer action that has no tangible effect on employment or even an action that takes places exclusively outside of work, as long as that action may discourage a reasonable person from engaging in a protected activity.

Whether an action by an employer is materially adverse depends on the facts and circumstances of each case. The United States Supreme Court has held the following as materially adverse actions: transferring a worker to a harder, dirtier job within the same pay grade and suspending her without pay for more than a month (even though the pay was later reimbursed); the FBI’s refusing to investigate death threats against an agent; the filing of false criminal charges against a former employee; changing the work schedule of a parent who has caretaking responsibilities for school-age children; and, excluding an employee from a weekly training lunch that contributes to professional advancement.

The EEOC has also advised though that a petty slight, minor annoyance, trivial punishment, or any other action that is unlikely to discourage an employee from engaging in protected activity under the circumstances is not materially adverse. Courts have held that depending on the facts of a case, temporarily transferring an employee from an office to a cubicle and that occasional brief delays by an employer in issuing refund checks to an employee that involved small amounts of money were both not materially adverse.

In order for an employee or applicant to prove a legal claim of retaliation evidence must show that: they engaged in a prior protected activity; the employer took a materially adverse action; and, retaliation caused the employer’s action. While this standard may seem difficult to meet, in actuality, retaliation is one of the easiest claims to prove. As such, it is important that employers do everything they can to avoid retaliation in the workplace.

The EEOC has provided advice as to how employers can reduce their chances of violating the law in regard to retaliation. First, EEOC recommends that employers educate their staff, especially supervisors and managers. Employers should make sure that employees understand what types of acts are considered illegal retaliation. Employers can educate their staff by having a written, easy to understand anti-retaliation policy and should train employees how to identify and stop retaliation. The EEOC also recommends that employers document and review all employment actions.  Requiring supervisors and managers to justify negative employment action in writing can result in supervisors and managers being more aware of actions that can be viewed as retaliatory. Also, employers can have other supervisors and managers review negative employment actions to ensure that they actions are justified and consistent with existing practices. Finally, the EEOC recommends that supporting employees that are accused of employment discrimination, harassment, or interference as they may benefit from ongoing individual support. Employers can coach their employees by discussing its policies and providing tips for avoiding actual or perceived retaliation. 

It is always important for an employer to make sure that they are not taking any actions that would discourage an employee or an applicant from engaging in a protected activity. If an employer takes such action, they are setting themselves up for a retaliation claim. It is also important for employers to make sure their anti-retaliation policy is always up to date and that all employees are aware of and understand the policy.

NAE is always happy to assist with any retaliation or EEO related questions. NAE members with questions on how to handle a situation where there are concerns of retaliation should contact a member of our team of human resources and legal professionals to discuss best practices. If a company finds itself the subject of an EEOC or NERC complaint that includes retaliation, please contact us and speak with a member of our legal services team to learn more on we can assist with the complaint process. Staying compliant and retaining good employees is a major challenge for employers today, let us help.