Retaliation is the most frequently alleged basis of discrimination in the federal sector and the most common discrimination finding in federal sector cases, according to the U.S. Equal Employment Opportunity Commission (EEOC).
The laws enforced by the EEOC prohibit punishing job applicants or employees for asserting their rights to be free from employment discrimination including harassment. Asserting these rights is called protected activity, and it can take many forms.
In order to prevent illegal retaliation in your workplace, you have to understand some basic definitions.
Retaliation refers to actions an employer takes against a covered individual because he or she engaged in a protected activity.
Adverse actions are steps taken to keep someone from opposing a discriminatory or harassing practice or participating in an employment discrimination proceeding. Examples of adverse actions include firing an employee, denying a promotion and giving an unjustified negative performance evaluation.
Covered individuals under the laws administered by the EEOC are people who have opposed unlawful practices, participated in proceedings, or requested accommodations related to employment discrimination based on race, color, sex, religion, national origin, age, or disability.
Individuals who have a close association with someone who has engaged in protected activity are also covered. For example, it is illegal to terminate an employee because his spouse (who is also an employee) participated in employment discrimination litigation.
Note: In addition to the employment laws administered by the EEOC, retaliation can occur against individuals who may be protected by other federal, state, or local laws. This includes the federal Family Medical Leave Act and whistleblower laws that bring attention to ethical, financial, or other concerns.Protected activity includes opposing a practice believed to be unlawful discrimination. For example, an employee complaining about treatment he or she believes is discriminatory — directed at the employee or a co-worker. Protected activity also includes participating in an employment discrimination proceeding or requesting a reasonable accommodation based on religion or disability.
Cases of retaliation may not be as simple as they may seem. They don't just involve an employee making a claim of harassment or discrimination. They might involve co-workers, witnesses and family members of the employee. Here are some examples of EEOC cases involving a range of retaliatory acts:
There are several steps you can take to help prevent retaliation at your organization. They include:
Keep an open door policy. Have a culture where staff members feel comfortable reporting problems to company officials, rather than someone outside the organization. Train supervisors about what constitutes retaliation and how to avoid it. Make it clear in written policies and in verbal discussions that retaliation will not be tolerated and will result in discipline.
"Time and again, the EEOC sees cases where retaliation by employers is as bad, or even worse, than the original discrimination," explained Barbara A. Seely, a regional attorney in the EEOC's St. Louis District Office. "Employers must understand that the law prohibits not only discrimination, but also retaliation against employees who complain about discrimination, who file discrimination charges with the EEOC, or who participate in discrimination lawsuits."
EEOC statistics show that in fiscal 2018, retaliation lawsuits totaled 39,469, compared with 32,690 a decade earlier in 2008.
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