The Top Five Things to Consider About Retaliation Charges
By Jill Garcia, Esq.
1. Retaliation claims remain the number one claim filed with the EEOC.
While we do not yet have 2019 data, FY 2018 data showed that retaliation claims continued to be the most frequently filed charge with the EEOC. In 2018, 51.9 percent of all charges were for retaliation, compared with 32.2 percent for sex, 32.2 percent for disability and 32.2 percent sex discrimination claims. The EEOC collected $505 million for retaliation charges and continues to focus on these types of charges.
2. An employer can be liable for retaliation even if it is not liable for the underlying discrimination complaint
Why are there so many retaliation charges? Retaliation issues need to be high on an employer’s list of concerns, as an employer can be liable for retaliation, even if there is no finding of discrimination. For example, assume an employee complains she was demoted due to her sex, and though it was already in place due to performance issues, she is now terminated post-complaint. A retaliation claim seed has now been planted.
3. An adverse action is much more than firing an employee
While it may seem obvious that a manager may not fire, demote, harass, or otherwise “retaliate” against an individual for filing a complaint of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination, an adverse action goes many steps further. Other employer actions that have been deemed to be adverse actions include: transferring an employee to a less desirable position; moving an employee’s office to a less desirable location; engaging in verbal abuse; increasing scrutiny; changing an employee’s shift, even if the shift pays more; and otherwise making an employee’s work more difficult.
4. Employers need to be careful of former employees as well
Title VII protects both current and former employees. Employers should recognize the inherent danger in making comments about former employees who have made complaints about discrimination. Actions that may interfere with an ex-employees future ability to secure work can also lead to a retaliation claim.
5. What can employers do?
The concern of a retaliation claim oftentimes leaves employers fearing they now have a lifelong employee. Engaging in a protected activity, however, does not shield an employee – in theory – from all discipline or discharge. Employers are free to discipline or terminate workers if motivated by non-retaliatory and non-discriminatory reasons that would otherwise result in such consequences. However, an employer is not allowed to do anything in response to protected activity that would discourage someone from reporting or complaining about future discrimination. EEOC guidance suggests that ways to help combat a retaliation claim include: (a) maintaining a written, plain language anti-retaliation policy, with practical guidance of what to do and not to do; (b) training all managers, supervisors, and employees on the employer’s written anti-retaliation policy; (c) providing managers and supervisors alleged to have engaged in discrimination guidance on how to handle any personal feelings about the allegations when carrying out management duties or interacting in the workplace; (d) checking in with managers and supervisors during the pendency of the investigation or charge; and (e) requiring decision-makers to identify their reasons for taking consequential actions.
About the author:
Jill Garcia has over 18 years’ experience defending employers and educational institutions. Her practice areas include Title VII, the FMLA and discrimination law, and defending schools in student and teacher issues
This article was originally published in the “Labor & Employment Law” issue (February 2020) of Communiqué, the official publication of the Clark County Bar Association.
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