The Merriam-Webster definition of retaliation is either “repay an injury in kind” or “to return like for like, especially to get revenge.” It comes from the Latin word “retaliare” which meant to pay back in kind. Originally it was used in both a positive and negative way, but today it only has the negative meaning. If employers engage in retaliation it has a very negative meaning and can have some serious consequences.
In their most recent report on enforcement activity the EEOC revealed they received 88,778 charges of workplace discrimination, of which 42.8% (37,955) were retaliation charges. This was by far and away the large source of charges exceeding race by almost 8% and sex by almost 14%. There may be several reasons this is occurring:
- Employers are retaliating more
- Employers are discriminating less
- Lawyers are encouraging employees to file retaliation claims
My guess is that the reason the number of charges is so high is a combination of these three reasons.
Title VII of The Civil Rights Act has been around since 1964 and although it has taken employers and employees a LONG time to learn what should and should not be done the lessons may have sunk in with many employers. So they know you cannot discriminate on the basis of race, or age or gender, etc. but the lesson of retaliation has not been as widely broadcast. Since retaliation can occur in a time frame that is separate from the original discrimination many “vengeful” managers may not see their actions as being tied to what occurred before. Many HR departments lose sight and don’t document actions that occur later. Defense attorneys hate this, but plaintiff attorneys may see it as a “gold mine” of potential litigation. Many times the case turns on circumstantial evidence and as one plaintiff’s attorney said “Generally, the more circumstantial evidence of discrimination, the stronger the case and the better the chances of prevailing.”
What the EEOC says
According to the EEOC:
An employer may not fire, demote, harass or otherwise “retaliate” against an individual for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, and disability, as well as wage differences between men and women performing substantially equal work, also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding.
There are three main terms that define retaliation. These are adverse action, covered individual and protected activity. According to their Facts Sheet the EEOC says “An adverse action is an action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding.” These adverse actions generally consist of job actions such as termination, demotion, denial of promotion or even a refusal to hire. However, it can include things such as too much surveillance, threats, assault or negative references.
The second term, covered individual, refers to people who are protected by Title VII of the Civil Rights Act of 1964, which means anyone that works for a company with 15 or more employees. If that person has opposed unlawful practices, participated in proceedings, or requested accommodations related to employment discrimination then they are covered. People associated with these people are also protected.
The third term, protected activity, includes a wide range of opposition to unlawful discrimination, such as complaining to anyone about alleged discrimination against oneself or others; threatening to file a charge of discrimination; picketing in opposition to discrimination; or refusing to obey an order reasonably believed to be discriminatory. Other protected acts may include filing a charge, acting as a witness or participating in an investigation.
Title VII is not the only law that covers retaliation. Other laws that guard against retaliation are OSHA, Wage and Hour, Sarbanes-Oxley, and Dodd-Frank. People, who claim retaliation under these laws, and others, are not protected by the EEOC but are often as equally protected. Many of these are also called “Whistle blower” laws. Many plaintiff’s attorneys provide guidance on how to file a retaliation claim.
The point of this post is that retaliation has a huge amount of attention focused on it right now. Not being aware of it is not an excuse. Everyone should be trained in what retaliation is, as I wrote in To Keep Your Managers from Retaliating They Need to Know What that Means.
Don’t become another statistic! After all the EEOC did recover over $296 million for employees, and that was before litigation.