EEO - Retaliation

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Federal

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Authors: James Anelli, Elizabeth Clarke and Michael Gardner, LeClairRyan

Summary

  • Title VII is the primary source of protection against retaliation, and it is enforced by the Equal Employment Opportunity Commission (EEOC). See Governing Law.
  • Retaliation occurs when an employer, employment agency or labor organization takes an adverse action against an individual because he or she engaged in protected activity. See Protected Activity.
  • In order to prove retaliation, an individual must prove:
    • Statutorily protected participation or opposition;
    • An adverse employment action; and
    • A causal connection between the protected activity and the adverse employment action.

      See Adverse Employment Action.
  • There are two types of protected activity: participation and opposition. An employer may not terminate, demote, harass or otherwise retaliate against an individual for either participating in an investigation of discrimination or for opposing any practice believed to be discrimination. See Protected Activity.
  • However, employee participation and opposition are not protected if they interfere with job performance or duties or if the activity rises to the level of unlawful actions or threats. See Protected Activity: Opposition.
  • In order to prove an adverse employment action, a plaintiff-employee must show that the employer's action would have been materially adverse to a reasonable employee by potentially dissuading a reasonable worker from making or supporting a charge of discrimination. See Adverse Employment Action.
  • Employers can defend against a retaliation claim by showing that they would have taken the adverse employment action even if the employee had not participated in a protected activity. Additionally, if the employee argues that the adverse action was retaliatory due to the short length of time between the protected activity and adverse action, the employer can defend against the claim by producing evidence that it was taking steps to initiate the adverse action prior to the employee's participation in the protected activity. See Defending a Claim of Retaliation.
  • Retaliation claims are on the rise, making internal prevention of retaliation claims ever more important. Employers need to create policies and training procedures that minimize the risk of a retaliation claim. Employers should keep complaints confidential to the extent practicable, but must do what is necessary to investigate a claim. Employers should never promise complete confidentiality. See Managing and Preventing Retaliation.

State Requirements

The following states have additional requirements for this topic under applicable state law.