When an employee files an EEOC claim or alleges discrimination, but still works for their employer, one of the most difficult things for the employer can be avoiding an added claim of retaliation. Title VII of the Civil Rights Act prohibits any retaliation against employees who have filed complaints against their employers.
Retaliation is any action that would have deterred a reasonable employee from making a claim of discrimination, had the employee known the action would have been taken if he or she had complained. An employee can win a retaliation claim even when he or she does not win the discrimination claim.
Employers can find themselves in a difficult situation after these claims have been made because the law gives little guidance about what to do. And, to make matters worse, there are some employees who will try to work the system, by making a complaint when their jobs are in trouble, knowing that a retaliation claim can be made if their employment is terminated or if they are disciplined. Sometimes employers are so fearful of retaliation claims that the complaining employee receives more favorable treatment than he or she would have gotten if a complaint had not been made.
The U.S. Supreme Court’s latest decision on retaliation lawsuits, Burlington Northern & Santa Fe Railroad v. White, has made the problem of continuing to work with complaining employees even more difficult by expanding the kinds of behaviors that could constitute retaliation.
Some actions that could be considered retaliatory include:
Although the Court has judged that petty annoyances are not enough to constitute retaliation, the list is very comprehensive.
- Questioning an employee after learning about a discrimination claim.
- Denying a promotion.
- Transferring to another location.
- Changing job duties.
- Increasing “monitoring” of the employee’s activities.
- Excluding an employee from meetings or training lunches.
- Suspension without pay.
- Denying previously approved time-off.
- Filing a lawsuit against the employee or a counterclaim in a lawsuit brought by the employee.
Emotions that are involved after a complaint has been made also make it harder to watch out for retaliation. It is natural for someone to be more cautious around a person who has complained about their behavior. Other times, an employer learns that there were deficiencies in the complaining employee’s behavior that didn’t come to light until the complaint was made. When the deficiency is addressed, it can appear as if the employer is doing it because the employee has complained. Other times, a policy change is put into place after a complaint is made. The policy change might adversely affect the complaining employee, again, giving the appearance of retaliation. Finally, sometimes employers closely monitor complaining employee’s behavior, causing more problems.
Acceptable behavior is any action that has a legitimate business purpose and doesn’t serve as retaliatory against the employee. Yet, employers should expect their every action to be put under a microscope and should seek legal counsel before taking any action at all.