What You Don’t Know About Retaliation Charges Could Cost You

By Sheri D. McWhorter

Charges of workplace discrimination and retaliation filed with the federal Equal Employment Opportunity Commission (EEOC) hit record levels in 2010. According to statistics released in mid-January, in fiscal year 2010 individuals filed just under 100,000 complaints with the EEOC. Significantly, for the first time ever the number of retaliation charges surpassed race, and retaliation became the number one basis for EEOC charge filings. Companies would be well-advised to pay close attention to this development and adjust their policies and practices accordingly.

The EEOC’s FY 2010 data showed private sector charge filings increased in all major categories, including under Title VII (alleging discrimination based upon race, sex, national origin, color, and religion); the Americans with Disabilities Act; the Age Discrimination in Employment Act; the Equal Pay Act; and the newly enforced Genetic Information Nondiscrimination Act (GINA).

Race discrimination has been the most frequently filed charge since the EEOC became operational in 1965. In 2010, the number of charges of race discrimination were surpassed, and retaliation became the most frequently filed charge. Allegations of discrimination based upon religion, disability, and age likewise increased. 201 charges were filed under GINA, which is in its first year of enforcement. In 2010, the EEOC secured more than $404 million in monetary relief paid by employers to aggrieved individuals. More than $319 million was achieved without resorting to litigation, the highest level of monetary relief ever obtained by the EEOC through its administrative process.

While the record number of charges filed and level of monetary relief obtained is not particularly surprising given the Obama administration’s increased commitment to the EEOC, and 2010’s economic climate and large number of private sector workforce reductions, what is surprising is that retaliation surpassed race as the number one basis for EEOC charge filings. In light of this development, employers may need to broaden their focus beyond the more traditional discrimination claims, and educate themselves and their supervisors and managers on the potential dangers of retaliation claims as well.

Retaliation claims usually arise after an employee makes a discrimination complaint, and thereafter is subjected to “adverse action,” (i.e. treated less favorably) than before he or she complained. Under the law, an employer may not take “adverse action” against an individual (i.e. fire, demote, harass, threaten, give an unjustified negative performance evaluation, make an unjustified negative reference, or subject to increased scrutiny or surveillance or otherwise "retaliate") for complaining of discrimination, filing an EEOC charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. The protection against retaliation applies regardless of the validity or reasonableness of the underlying complaint or EEOC charge, and employers may find themselves defending against a valid claim of retaliation, even though the underlying discrimination claim may be baseless.

The law also prohibits retaliation against a former employee who complained of discrimination, or assisted or participated in the investigation or prosecution of a discrimination complaint. Examples of post-employment retaliation include actions designed to interfere with the individual's prospects for employment, such as giving an unjustified negative job reference, refusing to provide a job reference, and/or informing an individual's prospective employer that the individual filed an EEOC charge against the former employer.

The EEOC charge need not be against the individual’s current employer. Even if the EEOC charge alleged wrongdoing by a different employer, retaliatory adverse actions are unlawful. For example, it is unlawful for an individual’s current employer to retaliate against him for pursuing an EEOC charge against a former employer (i.e. refusing to hire an applicant because the company is aware the individual filed an EEOC charge against the applicant’s former employer).

Also prohibited is retaliation against persons closely related to the individual filing the EEOC charge. For example, an employer (or potential employer) may not take adverse action against the spouse of an individual who filed an EEOC charge against that employer, or a previous employer. Where both the individual and the spouse are current employees, both could file retaliation charges.

The potential is there for each and every one of your employees (current and former) to bring a claim of retaliation - not just the employee who complained. Also protected are those closely related to the employee who complained. For these reasons, it is critical that companies ensure their managers and supervisors are aware of and take seriously the potential legal exposure posed by possible claims of retaliation.

About the Author
Sheri D. McWhorter, JD, SPHR is a Florida Bar Certified Specialist in Labor & Employment Law, and is President and Managing Shareholder of WorkplaceLegal SolutionsSM, Law Offices of Sheri D. McWhorter, P.A.  With offices in St. Petersburg and Tampa, WorkplaceLegalSolutions provides client focused employee relations counseling and proactive employment law solutions to businesses and non-profits throughout Florida and the greater Tampa Bay area.  For assistance, please call 866. 829.1883.