An employer is prohibited from terminating, demoting, harassing, or otherwise “retaliating” against an employee for engaging in a protected activity, such as reporting discrimination. The laws prohibiting discrimination based on race, color, sex, religion, national origin, age, disability, and genetic information also prohibit retaliation.
According to the Equal Employment Opportunity Commission (EEOC), “the act of retaliation is equivalent to revenge where a person perceives unfair treatment and attempts to restore equilibrium by taking the matter into his or her own hands.”
Retaliation will often prevent or discourage other employees from coming forward about discrimination they undergo in the workplace. The purpose of making retaliation illegal is to prevent employees from fears they have about reporting complaints of discrimination in the workplace.
Retaliation may come in the form of discipline, firing, salary reduction, demotion, or job or shift reassignment. Sometimes retaliation may be subtle and not clear that the employer’s action is negative. According to the Supreme Court, in the cases where the employer’s retaliation is not clearly negative, you must consider the circumstances of the situation. It is considered illegal retaliation when the adverse action would deter a reasonable person from making the complaint.
There must also be a causal link between the protected activity the employee engaged in and the employer’s adverse action. There must be a close proximity between these two actions. The Ninth Circuit, in particular, has found that the adverse action must occur fairly soon after the employee engages in a protected activity. An 18-month lapse between the protected activity and the adverse action was found to be too long to infer causation.
An employee is also able to make a hostile work environment-based retaliation claim. This form of retaliation may arise when an employee experiences harassment as retaliation for engaging in a protected activity. However, the EEOC states the harassment must be “sufficiently severe or pervasive to alter the conditions of the plaintiff’s employment, creating an abusive work environment.” Conduct such as repeated derogatory or humiliating statements, or actions that interfere with the employee’s work performance, made by supervisors or co-employees may give rise to a hostile work environment-based retaliation claim.
An employee may also be able to allege a third party retaliation claim. The EEOC defines a third party retaliation claim as when an employer takes an “adverse action against an employee who engaged in protected activity by harming a third party who is closely related to or associated with the complaining employee.” The Supreme Court has provided an example of when an employee is dissuaded to engage in a protected activity if he/she knew the employer would punish them by firing their spouse. In the case of a third-party retaliation claim, either the employee who was being punished may file a claim or the third party who was subjected to the adverse action.
When an employee brings a retaliation claims against an employer, there are several factors that may potentially defeat the claim. If the employer claims they were unaware of the protected activity or the employer has a legitimate non-retaliatory reason for the challenged action. Some examples of legitimate non-retaliatory reasons may be:
· Poor performance,
· Inadequate qualifications for the position sought,
· Performance inferior to the selectee
· Negative job references,
· Misconduct, and
· Reduction in force or other downsizing.
If an employee is able to prove retaliation, the remedies that may be available to them are preliminary relief, compensatory and punitive damages, and “equitable relief such as back pay, front pay, or reinstatement into a job.” Further, the EEOC may seek changes in “employer policies and procedures, managerial training, reporting to the Commission, and other measures designed to prevent violations and promote future compliance with the law.”
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