Employment Discrimination and Retaliation

Author- | Posted- | Updated: July 5, 2020 |

In the US, there are several Federal and State laws that prohibit discrimination against employees and applicants within a protected class. Protected class or protected groups in the context of employment discrimination means certain groups that are protected by the law against discrimination on the basis of age, sex, national origin, gender, religious beliefs or any other basis.  Whether during the recruitment process or throughout the term of employment, the employers are required to not discriminate against the people falling within the protected classes. There are several Federal laws that protect people against discrimination including the Civil Rights Act of 1964, The Age Discrimination in Employment Act, Americans with Disabilities Act as well as some more like the Pregnancy Discrimination Act and the Genetic Information NOn-Discrimination Act. These laws are enforced by the EEOC. (You can read a brief description of these laws here.)

While there are several laws protecting employees from any form of discrimination, yet there is always the fear of retaliation against the employees who have complained of discrimination by their employers. Retaliation means adverse action against the employees who have complained. For example, if an employer fires his employee because she complained that she had been denied a promotion because of her sex, he might find himself in legal trouble. 

Some Examples of Retaliation

Employers may make recruitment or firing decisions on the basis of traits like race, sex, age, or national origin. For example, a person complains to his employer about harassment at the workplace due to their age, sex, or race, and he is adversely treated by his employers. This makes his employer further liable for retaliation. 

For example, a female employee goes to his seniors to complain about sexual harassment, and following the incident, she is transferred to another position with lower payment and bonus potential. While on the one hand, it looks like the employer is trying to protect the employee from further harassment by transferring her to a new position, on the other hand, it can also be considered retaliation because in her new position she has been denied certain privileges. While employers should not discriminate against their employees on the basis of sex, on the other hand, they should not deny the complainant certain privileges or impose adverse work conditions. 

Suppose, the employer just transferred the complainant to another department where she could not have access to the same privileges or the same chances of growth. While this was mainly done to prevent the perpetrator from further harassing the female employee sexually, the result of the transfer was that the employee lost her seniority and also the chances of further commissions. 

So, irrespective of the intentions of the employer, since the action had an adverse impact on the employees, these actions would be considered retaliatory. 

The following actions can be considered retaliatory:

  • Declining to hire the complainant if she is an applicant or terminating the employment of the complainant if she was an employee.
  • Reducing the financial compensation or benefits of the employee.
  • Moving the complainant to a different department where his/her chances of growth are lower.
  • Asking the complainant to engage in activities that were outside the scope of employment for which they had been hired. 
  • Forcing the complainant for early retirement. 
  • Providing the complainant negative job evaluations or 
  • Trying to bribe the complainant by offering a better position with higher rewards within the same organization and asking him to drop the case or waive their right to sue.

Laws making retaliation against complainants in cases of discrimination illegal

There are various laws making it illegal to retaliate against an employee or applicant who has complained of discrimination at the workplace. These laws are enforced by the Equal Employment Opportunity Commission or the EEOC. The main laws making retaliation illegal are as follows:

Title VII of the Civil Rights Act of 1964:

This act apart from making discrimination at the workplace on the basis of age, sex, or race illegal, also makes it illegal to retaliate against the complainant. Employers’ retaliation against a person who has complained of discrimination or harassment or someone who has filed a charge against discrimination or participation in a lawsuit or investigation against discrimination is considered illegal under this law.  

The Pregnancy Discrimination Act:

Apart from making discrimination against pregnant women illegal, this law also prohibits retaliation against a person who has complained of such discrimination, filed a charge against discrimination, or been a part of some investigation or lawsuit in a discrimination case.

Americans with Disabilities Act.

This act makes it illegal to discriminate against people with disabilities who are otherwise qualified for a job. Apart from that, it also makes retaliation against complainants in such cases illegal. Employers cannot retaliate against the complainant or someone who has filed a charge or a person who has participated in a lawsuit or investigation against such discrimination.

Age Discrimination in Employment Act (ADEA)

Apart from making discrimination against people above 40 years of age illegal, this law makes retaliation against the complainants in such cases illegal. The law makes it illegal to retaliate against the people who have filed a charge, participated, or been a witness in an investigation or lawsuit related to age-based discrimination. 

What Employees Should Do When They Suspect Retaliation?

If an employee suspects that his employer is retaliating against him, he should first consult a supervisor or a human resource representative for the reason behind the adverse action. The employee should ask specific questions because that is completely fair and the employer might also be having perfectly reasonable explanations. In case, your employer cannot offer you a legitimate explanation, you should be ready to voice your concern that you are being retaliated against. There is no doubt that the employer will try to deny it. However, many times employers can retaliate without even having realized that retaliated. The employee must point out that he was retaliated against or that the adverse action took place only after he complained and should also ask to stop it immediately. In case the employer does not willingly admit his wrongdoing or correct the problem instantly, you must contact EEOC or the fair employment agency in your state.

How to build a case of retaliation

The employee will need to establish a link between his complaint and the retaliatory behavior. The more the amount of evidence, the stronger will be your case. The employee must first document the alleged retaliatory behavior. Apart from that, it is important to note the historical information before he made the complaint. For example, if your employer tries to draw an excuse linking the action with poor performance, you must also dig up for evidence showing your performance has been satisfactory or good. Find emails or documents that show that your work has been appreciated. However, if the retaliation is severe or you have been fired by your employer or even lost a lot of money in the form of wages, you should consult an employment lawyer. The lawyer would let you know how strong your case is or how much compensation you could likely recover from your employer.

Abhijeet Pratap

Abhijeet has been blogging on educational topics and business research since 2016. He graduated with a Hons. in English literature from BRABU and an MBA from the Asia-Pacific Institute of Management, New Delhi. He likes to blog and share his knowledge and research in business management, marketing, literature and other areas with his readers.