On August 29, 2016, the EEOC issued Enforcement Guidance on Retaliation. With that guidance it issued a fact sheet for small businesses about retaliation. At its most general, retaliation is when an employee reports discrimination in any way, and the employer takes an adverse action as a result of the report. The retaliatory action enables the employee to file another complaint or charge for discrimination. It does not matter if the initial complaint is meritorious.
The link to the fact sheet is as follows:
The take away from this guidance is highlighted as follows:
Retaliation is punishing job applicants or employees for asserting their rights to be free from employment discrimination, including harassment. The following are actions employees have the right to take to oppose discrimination. These are examples provided by the EEOC. The list is not all inclusive:
- Participate in an EEO investigation, including filing an external EEOC charge or filing an internal complaint with the company;
- Being a witness in a EEOC charge, complaint or lawsuit alleging discrimination;
- Communicating with a manager or supervisor about employment discrimination, including harassment;
- Refusing to follow orders that would result in discrimination;
- Resisting sexual advances or intervening to assist others;
- Reporting discrimination or harassment to a supervisor; or
- Requesting a disability or religious accommodation.
- An employer cannot refuse to hire an applicant because of an EEOC charge against a prior employee. That is also retaliation.
- Employers certainly can discipline employees for employment-related deficiencies who are involved in a discrimination complaint or EEOC charge. The job deficiencies should be clearly documented in writing by the employer. The employer should evaluate any discipline to insure it is job-related and not motivated by the fact the employee filed a charge or complaint.
- Even if employer never takes official employment action against the complaining employee, there are other actions which can be viewed as retaliatory such as reprimanding an employee near in time for filing a charge, giving a lower than usual performance evaluation, transfer of the employee to less desirable position, or increased scrutiny of the employee. If the employer takes any of these actions, there must be a job-related reason for these employer actions.
For help with employment law questions or other civil litigation issues, call Tracy Stroud, Attorney with Colombo Kitchin Attorneys in Greenville, NC, at 252-321-2020.