What is retaliation?

Perhaps it is worthwhile to examine what retaliation is before reviewing why it is so common in the federal sector. The EEOC states that “Retaliation occurs when employers treat job applicants, employees or former employees, or people closely associated with these individuals, less favorably for reporting discrimination or harassment; and or participating in a discrimination investigation or lawsuit; or opposing discrimination.” For example, it is illegal to fire an employee because she filed a charge of discrimination with the EEOC. Even if the EEOC concludes that the charge of discrimination does not have merit.

Why is it so common?

The answer is simple: individuals often seek to avenge a perceived offense. The natural desire to retaliate is common and human, but it cannot be done by a management official especially after an employee or job applicant has asserted their right to challenge a perceived wrong. The act of revenge can launch a legal liability for the manager and or the employer. Therefore, retaliation is not only illegal, it’s also bad for business. It is in the employer’s best interest for employees to feel comfortable reporting discrimination to their managers so they can investigate and address any conduct that violates the law or the company’s policies.

Why does it matter?

If retaliation was permitted in the workplace, many individuals would not be willing to speak out against employment discrimination and or participate in employment discrimination proceedings. Therefore, the employers must make diligent efforts to ensure that retaliation is not permitted in the workplace, with the collaboration of the EEOC representatives. If under any circumstance an employee or job applicant had any reason to believe the workplace policies violated EEO laws, he or she could assert their EEO rights.

What do employers need to know?

It is unlawful for employers to retaliate against applicants or employees for:

• filing or being a witness in an EEO charge, complaint, investigation, or lawsuit
• communicating with a supervisor or manager about employment discrimination, including harassment
• answering questions during an employer investigation of alleged harassment
• refusing to follow orders that would result in discrimination
• resisting sexual advances, or intervening to protect others
• requesting accommodation of a disability or for a religious practice
• Asking managers or co-workers about salary information to uncover potentially discriminatory wages.

It is important to note that employees who engage in EEO activity are not shielded 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, employers are not allowed to do anything in response to EEO activity that would discourage someone from resisting or complaining about future discrimination.

For example, it could be retaliation if an employer acts because of the employee’s EEO activity to:

• reprimand the employee or give a performance evaluation that is lower than it should be;
• transfer the employee to a less desirable position;
• engage in verbal or physical abuse;
• threaten to make, or actually make reports to authorities (such as reporting immigration status or contacting the police;
• increase scrutiny;
• spread false rumors, treat a family member negatively (for example, cancel a contract with the person’s spouse); or
• make the person’s work more difficult (for example, punishing an employee for an EEO complaint by purposefully changing his work schedule to conflict with family responsibilities).

Consequences of Retaliation – The Cost to Employers

If a retaliation complaint has been filed against an employer to the EEOC, investigative proceedings will be conducted to affirm the allegations. If these allegations have found merit, the EEOC will sue the employer.

In June 2018, the EEOC sued Sierra Creative Systems, a company located in Paramount, California, for alleged sex-based harassment. This company failed to prevent and correct ongoing sexual harassment, and retaliation against female employees. Also, in another recent case filed by the EEOC in Arizona, a federal district court ordered a Scottsdale, Arizona wine bar to pay $100,000 for sexual harassment against two servers because of their actual or perceived sexual orientation and for retaliation against one for complaining about it. These lawsuits, among others, typify the interconnectedness between claims of sexual harassment and those of retaliation.

In conclusion, defending a discrimination or other employment lawsuit is expensive. The average out of court settlement is about $40,000. However, defending a case through discovery and a ruling on a motion for summary judgment can cost an employer between $75,000 and $125,000. If an employer loses summary judgment, the employer can expect to spend a total of $175,000 to $250,000 to take a case to a jury verdict at trial. Furthermore, 10 percent of wrongful termination and discrimination cases result in a $1 million dollar settlement. And about 67 percent of the legal cases are ruled in the plaintiff’s favor when taken to litigation.

How can employers prevent retaliation?

To help prevent retaliation:

• Create a Policy: Inform employees that retaliation is prohibited. Make sure you have a policy against retaliation already in place; and the policy should specify what retaliation is. It should also state that retaliation won’t be tolerated and set forth a process for reporting and investigating complaints.
• Take Complaints Seriously: Take all complaints seriously and perform a thorough investigation. If the complaint has any basis, remedy the situation immediately. Respond to discrimination questions, concerns and complaints promptly and effectively. Remember to focus on the wrongdoer, not the employee who complained.
• Keep Complaints Confidential: Make it clear to your employees that any complaints they file will be kept confidential and information will only be shared with members of the organization to assist in investigating the matter. Also, let employees know that filing a complaint will not in any way affect their career opportunities.
• Keep Records: Have a process in place that records and documents everything, from the initial complaint, through the investigation and all the way to the conclusion. It is imperative that you document the process for any future legal proceedings.
• Communicate: Assure employees that they will not be punished for taking actions that are protected by law; Ensure that managers understand their responsibility to stop, address and prevent retaliation; and hold employees accountable for complying with and enforcing your discrimination rules and policies.
• Get Help From an Employment Lawyer: Claims of workplace retaliation can be complicated and expensive. Speak with an attorney who can offer guidance before problems become unmanageable.

Retaliation is the most common issue alleged by federal employees. Federal employers and government contractors must make diligent efforts to ensure that retaliation is not permitted in the workplace so their employees can feel free to exert their EEO rights. By doing so, employers will be able to avoid adverse legal action. However, if an employer receives a complaint from an employee or job applicant about discrimination or harassment in the workplace, it’s imperative that the employer take it very seriously and handle the complaint with special care. If the course of action the employer takes is viewed as punishing the person for filing the complaint in any way, this employer or manager may wind up facing a very expensive lawsuit.