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Know Your Rights: Retaliation

The same federal and state laws that prohibit sexual harassment also prohibit employers from firing, demoting, harassing or otherwise “retaliating” against an employee who complains about sexual harassment. Most lawyers agree:  proving retaliation can be much easier than proving discrimination or harassment.  Most attorneys have  frequently seen weak and thin claims of harassment or discrimination turn into very strong claims of retaliation because, once the employee complains, the employer actually retaliates in a way that is illegal. 

This presents a dilemma for employees.  Employees are understandably afraid to complain of discrimination or harassment because they fear retaliation, yet retaliation claims are often easier to prove and thus more valuable than the underlying discrimination/harassment claim. 

What constitutes “complaining” is the first question that comes up in determining if a retaliation claim exists  Technically, lawyers call this “engaging in protected activity” (more about this below) and it includes making any kind of complaint, whether oral or written, to your boss, anyone in a position of authority, or to HR (Note:  complaining to a co-worker doesn’t qualify).  The key point for “protected activity” is that the employer has to be on some kind of notice that you are complaining about discrimination or sexual harassment.  The employee is often in the difficult position of wanting to let the employer know she feels something unfair or inappropriate is going on, but she also realizes that if she is too explicit in calling it illegal or discriminatory, she will have a target on her back.  This fear is real and presents real challenges.  In this situation, consulting with a lawyer can really help.    It is also important to remember, HR might well not be your friend.  They might tell you they are on your side and that might be true, but, never forget that it is their job to be  on the side of the employer.   

Complaining for the purposes of “protected activity” also includes filing a complaint with Human Resources, filing a charge with the Equal Employment Opportunity Commission, participating in a discrimination/harassment proceeding, or any other type of conduct opposing discrimination or harassment. A retaliation claim is a claim separate from a sexual harassment claim. In other words, an employee need not show that he or she was sexually harassed in order to prove retaliation. Retaliation occurs when an employer takes an adverse action against an individual because he or she engaged in protected activity.

Who can Complain of Retaliation?

This is not limited to the actual “victim” of discrimination or sexual harassment.  Anyone who has opposed unlawful practices or conduct or who participated in proceedings related to employment discrimination or harassment  may complain of illegal retaliation.  The scope of this protection is based on a very important principle:  the laws are useless if people are not able to invoke their protections without fear.  The fear is real, the risks are great but the protection against retaliation is strong. 

What is "Protected Activity"?

Protected activity includes opposition to a practice believed to be unlawful discrimination or harassment. “Opposition” is informing or complaining to an employer that you believe that he/she is engaging in a prohibited discrimination or harassment. Opposition is protected from retaliation as long as it is based on a reasonable, good-faith belief that the complained of practice or conduct violates an anti-discrimination law and the manner of the opposition is reasonable. Examples of protected activity include: Complaining to  a supervisor or HR about alleged discrimination against oneself or others; threatening to file a charge of discrimination; or refusing to obey an order that you reasonably believe to be discriminatory.

Participation in an employment discrimination proceeding is another type of protected activity. “Participation” is protected activity even if the proceeding involved claims that ultimately were found to be invalid. Examples of participation include: filing a charge of employment discrimination or harassment; cooperating with an internal investigation of alleged discriminatory practices or harassment; or serving as a witness in a discrimination/harassment investigation or litigation.

What is an "Adverse Action"?

An “adverse action” is an action taken by the employer to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding.  If the complained of action or conduct would deter a reasonable person from complaining about illegal conduct, then the action or conduct may be unlawful retaliation. Examples of adverse actions that may constitute unlawful retaliation include: termination, refusal to hire, denial of promotion, threats of termination and/or demotion, unjustified negative evaluations, unjustified negative references, and/or increased surveillance of one’s performance. Adverse actions do not include petty slights and annoyances, such as stray negative comments in an otherwise positive or neutral evaluation, “snubbing” a colleague, or negative comments that are justified by an employee’s poor work performance or history. Of course, employees are not excused from continuing to perform their jobs or following their company’s legitimate workplace rules just because they have opposed discrimination or harassment, because they have  filed a complaint with the EEOC or other agency or because they have participated in a related investigation.

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