This is a guest post by Toni Ahl, President at EEO Advantage. The views, thoughts, and opinions expressed in the text belong solely to the author and do not necessarily reflect the view of OutSolve or its employees.
I thought I would begin the year by discussing retaliation since it was the basis listed in almost 60% of the charges filed with the Equal Employment Opportunity Commission (EEOC) in the last fiscal year.
Many Federal and state statutes have anti-retaliation provisions. When we discuss retaliation, it will be only in regards to the laws enforced by EEOC. Title VII of the Civil Rights Act of 1964, as amended, (Title VII), the Age Discrimination in Employment Act (ADEA), the Equal Pay Act (EPA), the Americans with Disabilities Act of 1990, as amended, (ADA) and the Genetic Information Non-Discrimination Act (GINA). All of these statutes have a provision to prohibit retaliation.
There are two ways by which employees gain coverage under the basis of retaliation: opposition and participation. Both kinds of retaliation are related to employees exercising their Federally protected rights. Whether an employee has coverage under retaliation has nothing to do with the outcome of the original complaint or charge. Even if the initial charge or complaint was not substantiated, the employee has coverage under the anti-retaliation provisions of the law(s). The threshold for establishing retaliation is lower than the threshold for determining discrimination filed originally. The term “likely to deter” is used to establish retaliation. So, if any type of action is taken against an employee that could be considered adverse and may cause others not to come forward to oppose or participate, the conduct may rise to the level of retaliation.
Opposition retaliation may occur when an employee complains about a perceived discriminatory practice and/or policy. In this instance, the complainant does not have to be a member of the protected class of those adversely affected by the practice and/or policy. Another way for an employee to be covered by opposition retaliation is if they complain about being denied a reasonable accommodation. And remember, accommodation may be requested under the ADA due to a disability or record of a disability and under Title VII for religious reasons. Keep in mind that the standard for determining if an accommodation is reasonable is different under the ADA and Title VII. Under Title VII, if the accommodation requires more than a “de minimus” cost to the employer, it might not be required. Under the ADA, the standard is higher and the employer must show undue hardship or direct threat to the employee or others in order to defend its position for denying the accommodation.
Participation retaliation occurs when an employee participates in the EEO process by filing a complaint, testifying at a hearing, serving as a representative for someone in the process, and/or participating in any manner in an investigation, proceeding, hearing, or litigation under the governing EEOC statutes. The investigation does not need to have been conducted by EEOC in order for the complainant to have coverage as long as the investigation dealt with bases covered by EEOC. So, an internal investigation conducted by the employer dealing with a complaint related to an EEO matter could qualify for giving the employee coverage. Requesting a reasonable accommodation under the ADA and/or Title VII is also considered to be participation retaliation.
Employers are expected to train their managers and supervisors about retaliation. Employees who exercised their Federally protected rights should be treated like all other employees meaning no better and no worse. They should not be excluded or given special treatment. This is often difficult for managers and supervisors. Management must also be aware of how co-workers are treating an employee who is covered under the anti-retaliation provisions to make sure they are not being harassed in some way for complaining and/or participating in the process.
If you have questions about retaliation, feel free to contact Toni at (502) 553-7648 or eeoadvantage@gmail.com. I hope that this year will be wonderful for you all.