A retaliation claim is an action taken by an employee when their employer takes negative measures against the employee because they file a formal complaint about workplace discrimination or harassment.  The Equal Employment Opportunity Commission (EEOC) considers the act of filing a complaint a “protected activity,” which can make it illegal for an employer or manager to respond to the complaint in a disciplinary or inappropriate manner. 

The EEOC is a federal agency created by the Civil Rights Act of 1964.  The purpose of the EEOC is to interpret and enforce federal laws prohibiting discrimination.

Common Types of Workplace Retaliation

A workplace retaliation claim can cover a wide spectrum of conduct from employers and the most common types include actions that affect the employee’s job and working conditions.  These include:

Termination or demotion

A reduction in salary, wages, or benefits

Unjustified low or negative performance evaluations

Denial of a promotion or pay increase

Changes in work hours, schedule, or location

The Three Elements of a Retaliation Claim

According to the “Enforcement Guidance on Retaliation and Related Issues” released by the EEOC in 2016, there are three elements of a retaliation claim.

Protected Activity: The two basic forms of protected activity are participation and opposition.  The EEOC defines “participation” as having filed a complaint or charge, testified, assisted, or participated in an investigation, proceeding, or hearing.  The meaning has also expanded to include establishing participation by making an internal complaint or participating in an employer’s internal investigation.

“Opposition” to unlawful activity is the other type of protected activity.  While the opposition may be broad in scope, it must be reasonable and based on a good faith belief in a violation of the anti-discrimination law.  Examples of this type include accompanying another employee to a human resources office so the employee can lodge a complaint.  Other examples are complaints to a third party about the employer’s practices, making public statements on social media, or even complaining about the employer’s discrimination in society in general.

Materially Adverse Action:  This element includes any employer conduct that might deter a reasonable employee from complaining about discrimination.  The EEOC states that this definition includes more than refusing to hire or promote an applicant to a new position, suspending or terminating an employee for his/her complaint, etc.  Actions like lowered evaluation scores or a transfer to a less prestigious or desirable work location can also constitute materially adverse actions.  It is also possible that actions that may have no tangible effect on employment or that take place exclusively outside of work may be materially adverse, depending on the situation.

Casual Connection:  The EEOC explains that the “but-for” causation standard applies to retaliation causes, but not discrimination or harassment claims.  In other words, it is the employee’s burden to prove that but for the employee’s engaging in protected activity, the employer would not have taken the adverse action.  This is a tougher standard than the “motivating factor,” which applies in discrimination and harassment cases.  Some of the evidence the EEOC looks for that can prove causation would be suspicious timing between the adverse action and protected activity, treating the employee more harshly than others in similar situations, untruthful or shifting explanations for negative conduct, and direct evidence such as oral and written statements.

Should Employers Fear the EEOC?

While employers should not underestimate the expertise and proficiency of the EEOC, it is also important not to overestimate it either.  Even if you are being sued by the EEOC, it doesn’t mean you have done anything wrong.  The Commission isn’t always right and you can win an EEOC lawsuit.  Ongoing and consistent documentation will be an employer’s ally in defending against retaliation claims.

Just because the EEOC asks an employer for information doesn’t mean that they are being adversarial.  Many times the EEOC just needs information from you to wrap up the case and rule in your favor.  Most EEOC investigators will try to arrive at a fair conclusion.  So, it’s important to respect the EEOC but not fear them.

That being said, it is critical not to handle even a seemingly trivial charge by the EEOC without the assistance of legal counsel.  There are many ways that employers can inadvertently admit to violations or provide too much information that allows the EEOC to go searching for other violations.

Defending Your Business

Of all the EEOC complaints, some form of retaliation allegation remains the most frequently filed employment law claim.  Retaliation cases can be complex because this area of law remains fluid and ever-changing.  The repercussions can be severe for employers who are not adequately protected. 

I’m Rob Robinson, and I have spent most of my 30 years practicing law on behalf of employers.  I am well experienced in the matters of defending and preventing retaliation claims.  Businesses are tasked with maintaining a fair and safe work environment and protecting their assets and interests.  My goal is always for a quick resolution.  However, when litigation is unavoidable, you can be confident that your retaliation case is in capable hands.

If you are notified by the EEOC, contact my law office immediately.  Time is always of the essence when it comes to retaliation claims.  As a solo practitioner, you can be assured that your case will be handled with individualized care and prompt attention.