UNDERSTANDING RETALIATION IN THE WORKPLACE & HOW TO PREVENT IT

Federal equal employment opportunity (EEO) laws prohibit retaliation in the workplace. Because of this, employers include anti-retaliation policies in their company’s harassment and discrimination policies. However, having a policy alone is not enough. Employers need to have a good understanding of how retaliation is defined and what kind of actions can give rise to retaliation claims to ensure that they remain complaint under the law. Retaliation is one of the most common claims, accounting for 56.8% of claims filed with the Equal Employment Opportunity Commission (EEOC) in 2023, and is usually easy to prove.  

Who is Protected from Workplace Retaliation?

The protections against retaliation in the workplace apply to employers, employments agencies, and labor organizations that are covered by EEO laws. Most EEOC laws apply to companies that have fifteen or more employees. Further, the protections from retaliation not only apply to all existing employees (full-time, part-time, temporary, probationary, and seasonal), but they also apply to applicants and former employees. These individuals are protected from retaliation regardless of their citizenship or work authorization status. As such, even if an employer suspects an employee is undocumented but does not attempt to verify applicant’s authorization to work and later the same worker files an EEO complaint for sexual harassment causing the employer to threaten to expose the workers’ immigration status, the employer will have violated the ban on retaliation.

It’s important to recognize and understand workplace retaliation. It can show up in different ways. It can direct and obvious (ex: demotion, suspension, being fired, pay cuts, unfair negative performance reviews, or a sudden and unfair transfer of job duties). It can be subtle or indirect (ex: social isolation, spreading false rumors, unwarranted checks on their work, and unfair changes to their work schedule). Knowing how retaliation can appear is the first step to tackling this issue successfully.

What is Workplace Retaliation?

Workplace retaliation occurs when an employer takes a materially adverse action because an applicant or employee has asserted their rights under EEO laws.  More simply put, retaliation is a protected activity followed by an adverse employment action.

However, there can be some cases where retaliation happens before any protected activity occurs. For example, when an employment policy discourages employees from exercising their EEO rights.

Engaging in a Protected Activity

When an applicant or employee asserts their EEO rights, they are engaging in protected activity. That includes any participation in the EEO process, such as filing a complaint, taking part in an EEO investigation, or reasonably opposing discriminatory conduct.

The EEOC considers the following to be protected activities:

• Filing or being a witness in an EEO charge, complaint, investigation, or lawsuit
• Communicating with a supervisor or manager about employment discrimination, including harassment
• Answering questions during an employer investigation of alleged harassment
• Refusing to follow orders that would result in discrimination
• Resisting sexual advances, or intervening to protect others
• Requesting accommodation for a disability or for a religious practice
• Asking managers or co-workers about salary information to uncover potentially discriminatory wages

Taking a Materially Adverse Employment Action

To be considered retaliatory, an employer’s action needs to be materially adverse. That means any action that might deter a reasonable person from engaging in a protected activity. Materially adverse actions include not only employment actions but also include employer actions that have no tangible effect on employment or even actions that take place exclusively outside of work, as long as the actions may discourage a reasonable person from engaging in a protected activity.

Whether an action by an employer is materially adverse depends on the facts and circumstances of each case. The Courts have held the following as materially adverse actions:

• Transferring a worker to a harder, dirtier job within the same pay grade and suspending them without pay for more than a month (even though the pay was later reimbursed)
• Filing of false criminal charges against a former employee
• Changing the work schedule of a parent who has caretaking responsibilities for school-age children
• Excluding an employee from a weekly training lunch that contributes to professional advancement

The EEOC finds the following actions to be materially adverse:

• Disparaging the person to others or in the media
• Making false reports to government authorities
• Filing a civil action
• Threatening reassignment
• Scrutinizing work or attendance more closely than that of other employees, without justification
• Removal of supervisory responsibilities
• Abusive verbal or physical behavior that is reasonably likely to deter protected activity, even if it is not sufficiently severe or pervasive to create a hostile work environment
• Requiring re-verification of work status, making threats of deportation, or initiating other action with immigration authorities because of protected activity
• Terminating a union grievance process or other action to block access to otherwise available remedial mechanisms
• Taking (or threatening to take) a materially adverse action against a close family member (who could bring a claim as an aggrieved individual in addition to the person who engaged in protected activity)

While the EEOC has indicated that any action that might deter reasonable individuals from engaging in a protected activity would be considered materially adverse, it is clarified that petty slights, minor annoyances, trivial punishments, or other actions that are unlikely to discourage protected activity would not be considered materially adverse. Courts have also found that, depending on the facts, temporarily transferring an employee from an office to a cubicle and occasional brief delays in issuing refund checks to an employee involving small amounts were not materially adverse.

The key question here is whether the employer’s actions would make a reasonable person think twice about exercising their rights under the law or supporting another in doing so.

Preventing Retaliation in the Workplace

To create a workplace without retaliation, organizations must take active steps. It is not enough to just have an anti-retaliation policy. They need to build a culture where workers feel safe sharing their concerns. To achieve this, it is important to set clear anti-retaliation policies, train managers and staff often, document and review all employment actions, and offer a way to report issues confidentially. Tackling retaliation needs a thorough approach.

Implementing Effective Anti-Retaliation Policies

A clear and complete anti-retaliation policy is the first step to protect against retaliation.

An effective policy should define what retaliation means and provide clear examples of actions that are not allowed. Employers should also explain what adverse action means in a broad way. They should make it clear that even small actions, if done as retaliation, are not allowed.

The policy should also explain how employees can report any instances of retaliation. This could mean reporting to their immediate supervisor, reaching out to HR, or using a confidential hotline. By having multiple ways to report, employees can choose what feels most comfortable for them.

Training and Educating Management and Staff

Employers need to educate their staff, especially supervisors and managers, on retaliation, including how to identify and stop retaliatory conduct. They should make sure that employees understand what types of acts are considered retaliatory under the law and give clear examples of how the different forms of retaliation might arise.

Employers should provide practical guidance on how to handle complaints when they arise. Managers need to know how to react when an employee talks about EEO issues. They should recognize the employee’s concerns without getting defensive.

Review and Document All Employment Actions

Requiring supervisors and managers to justify negative employment action in writing can result in supervisors and managers being more aware of the actions they are taking and what can be viewed as retaliatory. Also, employers can have other supervisors and managers review negative employment actions to ensure that they actions are justified and consistent with existing practices.

Responding to Workplace Retaliation

Dealing with retaliation, if and when it occurs, is just as important as stopping it from happening in the first place. It is important for employers to take any report of retaliation seriously and to handle the issue quickly and fairly. An impartial party, whether internal or external, should conduct a prompt and fair investigation into the allegation and, if substantiated, appropriate disciplinary action taken.

Conclusion

While anti-retaliation policies are a crucial foundation, true prevention demands a multifaceted approach. Given that retaliation claims constitute a substantial portion of EEOC filings and are often straightforward to substantiate, employers must move beyond mere policy implementation. They must cultivate a culture of awareness and accountability, ensuring all personnel, especially managers, are thoroughly trained to recognize and avoid retaliatory conduct. Ultimately, effective prevention and swift, impartial responses to retaliation claims are not just legal obligations, but essential components of building a fair and equitable workplace for all.

• Next
• Previous