Playing Fair on the Employment Playground: Retaliation as a Form of Employment Discrimination
Also published in DRI’s “The Brief Case” February 2023, Volume 2, Issue 2
re∙tal∙i∙ate –to do something harmful to someone because they have harmed you first [i]
We can all picture a classic scene on the playground between two kindergarteners who are in line for the slide. Suddenly, the one farther back jumps ahead of the first, who then shoves the jumper or yanks her hair. Screams ensue. Then the teacher explains that “two wrongs don’t make a right” and scolds the child who sought revenge. Almost always, the act of retaliation is the bigger crime.
The Employment Playground
This maxim is true in the workplace, as well. One rule on the employment playground is clear. A supervisor or manager who feels like the one at the front of the line, suddenly attacked by an employee’s claim of discrimination, must not retaliate through termination or discipline. Employees should be able to assert their rights to be free from discrimination in the workplace, without fear of retaliation.
In recent years, retaliation has been the most commonly filed charge with the U.S. Equal Employment Opportunity Commission (EEOC).[ii] In 2021, the EEOC received 34,332 charges of retaliation, which was 56.0% percent of all charges filed.[iii] About a year ago, the U.S. Department of Labor, National Labor Relations Board, and the EEOC undertook a joint initiative to raise awareness about retaliation issues when workers exercise their protected rights.[iv] Many predicted that EEOC enforcement of retaliation claims would increase in 2022 as a result of rules changes and the Biden Administration’s prioritization on enforcement.[v]
Unlike the revenge scene on the children’s playground, where both acts were unjustified, in the workplace it’s more complicated, because the same actions are justifiable in some circumstances and not in others. Employers in most states may terminate employees for any reason, as long as they don’t violate anti-discrimination laws or public policy. An employer may even lawfully terminate an employee who has complained of discrimination, but should not do so unless there is documented evidence of a legitimate reason for the termination, such as underperformance or violation of company policy. And while employees are justified in (and should not be afraid of) asserting their workplace rights, one who is underperforming or violating company policy should not attempt to avoid termination by making a false accusation.
At a minimum in the workplace, we should all try to abide by the basic etiquette we learned on the playground. Treat everyone the same. Don’t be afraid to stand up for yourself. Listen when someone says you’ve hurt them. Correct your mistakes. And, if you feel you’ve been wronged, don’t seek revenge!
But to survive and thrive on the employment playground, employers must also be familiar with the exacting rules of federal and state employment laws. They should put procedures in place to ensure that they don’t discriminate against job applicants or employees because of their race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age, or disability. One necessary step is to earnestly engage in an interactive process with employees who seek reasonable accommodations for disabilities or religious beliefs, then be willing to make accommodations that don’t pose undue hardship on the company. Employers should appreciate that there are nuances under federal and state laws, which vary depending on protected class, status, or activity.
On a more fundamental but practical level, employers should make sure employees understand their job responsibilities (especially the essential functions) and company policies, tell employees when they aren’t getting the job done, enforce company policies and apply discipline consistently to all employees, and document underperformance and violations of policies. Not only are these sound business practices, but they should provide a strong defense in litigation over employment discrimination.
Federal laws prohibit retaliation
Retaliation occurs when an employer takes a materially adverse action against an employee because the employee has asserted rights protected by equal employment opportunity (EEO) laws.[vi] These laws not only protect employees’ rights to be free from employment discrimination in the first place, but also prohibit employers from retaliating against employees after—and because—they have engaged in or threatened to engage in protected activities necessary to exercise their rights under federal laws, including:
- Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, and national origin;
- Title V of the Americans With Disabilities Act (ADA);
- Section 501 of the Rehabilitation Act, which prohibits employment discrimination against individuals with disabilities in the federal sector;
- Age Discrimination in Employment Act (ADEA);
- Equal Pay Act; and
- Title II of the Genetic Information Nondiscrimination Act (GINA).
Protected activities include reporting an alleged incident of discrimination to a manager or human resources representative, refusing to follow a supervisor’s orders that would result in discrimination, resisting sexual advances or other unlawful harassment, intervening to protect other employees from harassment, requesting accommodation of a disability or for a religious practice, filing a complaint with the EEOC, and asking managers or co-workers about salary information to see if there is potential wage discrimination. According to the EEOC, it is unlawful retaliation when an employer imposes consequences for participating in an EEO matter, even if the employer knows or believes that the employee is not acting in good faith. An employer can even commit unlawful retaliation before any protected activity occurs, by implementing a policy that discourages employees from exercising their EEO rights.
However, EEOC guidance makes clear that, “even though the anti-retaliation laws are very broad, employers remain free to discipline or terminate employees for poor performance or improper behavior, even if the employee made an EEO complaint. Whether an employer’s action was motivated by legitimate reasons or retaliation will depend on the facts of the case. . . . If a manager recommends an adverse action in the wake of an employee’s filing of an EEOC charge or other protected activity, the employer may reduce the chance of potential retaliation by independently evaluating whether the adverse action is appropriate.”[vii]
EEOC on an enforcement roll
In December, the EEOC settled a lawsuit against a facility management company for alleged violations of the ADA, as amended, which prohibits employers from firing employees because of disabilities and requires employers to accommodate disabilities by providing accommodations that do not cause undue hardship.[viii] The lawsuit alleged that the company implemented a COVID‑19 policy that required employees to work remotely from March to June 2020. After the policy ended and employees were required to return to work in person, a female health and safety manager with a pulmonary condition that increased her risk of contracting COVID‑19 asked if she could be allowed to take frequent breaks when onsite and to work remotely two days a week. According to the lawsuit, even though the company allowed others in the same position to work remotely, it denied her request and terminated her employment soon thereafter. The settlement included $47,500 in monetary relief to the former employee and a two-year consent decree under which the company promised to change its policies, train employees on the ADA, and permit the EEOC to monitor its handling of future requests for accommodations.
On December 15, the EEOC filed a lawsuit against a healthcare system in Georgia for alleged violations of Title VII, which prohibits firing employees because of their religion and requires employers to accommodate sincerely held religious beliefs.[ix] The lawsuit alleges that the healthcare system fired a maintenance assistant for requesting a religious exemption to its flu vaccination policy. The hospital system has a procedure for employees to request religious exemptions, under which it granted exemptions to this employee in 2017 and 2018. But in 2019 the hospital system denied his request for a religious accommodation and terminated his employment, even though his interaction with the staff and public were extremely limited. The EEOC is seeking back pay, front pay, compensatory damages, and punitive damages for the former employee and injunctive relief against the hospital system to prevent future discrimination. An attorney for the EEOC argues that it would not have been an undue burden for the hospital system to continue to accommodate the employee, but instead the hospital system “inexplicably changed its stance on flu vaccination exemptions for this maintenance employee in 2019 and failed to consider any meaningful reasonable accommodations for his sincerely held religious beliefs.” According to the EEOC’s Atlanta District Director, “religion is defined to include all aspects of religious observance and practice, as well as belief, and the EEOC stands ready to enforce an employer’s statutory obligation to reasonably accommodate the religious observances and practices of its employees where doing so would not be an undue hardship on the conduct of the employer’s business.”[x]
In November, the EEOC settled a lawsuit against a car dealership for alleged violations of the Equal Pay Act and Title VII.[xi] A female employee claimed she was fired a week after complaining to human resources that she was paid less than a male employee in the same position, when both were both performing equal work. The company claimed she was terminated for uttering a profanity during a break. She argued that when a male employee had engaged months earlier in far more offensive conduct, the company had only given him a written warning. The settlement included $62,500 in monetary relief to the former employee and a two-year consent decree enjoining the company from sex-based pay discrimination and retaliation against employees seeking equal pay. Also, the company promised to implement a policy for employees to report unequal pay and procedures for handling complaints, and to train its managers and supervisory employees on preventing sex-based wage discrimination and retaliation against those who demand equal pay.
Another EEOC settlement in November tells a cautionary tale about retaliating against job applicants. The lawsuit alleged that the operator of a food processing facility retracted an offer to a female former employee of the facility, after discovering that she had previously filed a complaint of pregnancy discrimination and an EEOC charge against it.[xii] The EEOC alleged violations of Title VII, which protects pregnant workers from employment discrimination and prohibits employers from retaliating against employees who report or file an EEOC charge based on pregnancy discrimination. The settlement included $60,000 in monetary relief and a two-year consent decree prohibiting discrimination and retaliation in violation of Title VII. Also, the company promised to educate employees about how to report complaints of discrimination and retaliation; to train employees on the requirements of Title VII, including its anti-retaliation provisions; and to issue a written statement that it will not retaliate against employees who exercise their Title VII rights.
State laws prohibit retaliation
Additionally, many states have enacted laws prohibiting retaliation. For example, North Carolina’s Employment Retaliation in Employment Discrimination Act (REDA) prohibits employers from retaliating against employees who, in good faith, engage in or threaten to engage in protected activities to assert their workplace rights.[xiii] Protected activities include filing a claim or complaint, testifying or providing information to any person, and initiating an investigation or other action against the employer, to assert rights under North Carolina’s workers’ compensation, wage-and-hour, OSHA, and mine safety laws. REDA also protects against discrimination based on genetic testing, National Guard service, the juvenile justice system, domestic violence, pesticide exposure, sickle cell and hemoglobin C carriers, and reporting employers’ activities under the Paraphernalia Control Act. An employer does not violate REDA if it can show by the greater weight of the evidence that it would have taken the same unfavorable action even without the employee engaging in the protected activity.
The information contained in this article is of a general nature and is not intended as, nor should it be relied upon for, legal advice. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.
[viii] EEOC v. ISS Facility Services, Inc., Civil Action No. 1:21-cv-03708-SCJ-RDC (U.S. District Court for the Northern District of Georgia)
[ix] EEOC v. Children’s Healthcare of Atlanta, Inc., Civil Action No. 1:22-CV-4953 MLB RDC (U.S. District Court for the Northern District of Georgia)
[xi] EEOC v. Jerry’s Chevrolet Inc., et al., Civil Action No. 21-cv-02464-JRR (U.S. District Court for District of Maryland)
[xii] EEOC v. Keystone Foods LLC, Case No. 2:21-cv-00629-MHT-JTA (U.S. District Court for the Middle District of Alabama)