Most employers know that federal laws prohibit harassment or discrimination against employees for certain protected characteristics, such as age, race, color, sex, religion, national origin, or disability as defined by the Americans with Disabilities Act (the “ADA”). However, employers should also be aware that federal law also prohibits employers from retaliating against an employee who engages in activity protected by the federal anti-harassment/anti-discrimination laws.

The number of retaliation claims filed with the Equal Employment Opportunity Commission (the “EEOC”) has nearly tripled in the past 20 years—from just over 18,000 in 1997 to over 42,000 in 2016. (EEOC Charge Statistics FY 1997 Through FY 2016 (https://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm)). In fact, the number of retaliation claims filed with the EEOC has surpassed those for every type of status-based discrimination except race.

Employees engage in “protected activity” in a variety of ways. Essentially, protected activity includes exercising rights contained in the employment laws enforced by the EEOC – Title VII of the Civil Rights Act (“Title VII”), the Age Discrimination in Employment Act (the “ADEA”), the ADA, and the Genetic Information Non-Discrimination Act (“GINA”). For example, employers may not retaliate against an employee for:

  • filing or being a witness in a discrimination/harassment complaint, investigation, EEO charge, or lawsuit;
  • communicating with a supervisor or manager about employment discrimination or 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 of a disability or for a religious practice; or
  • inquiring about salary information to uncover potentially discriminatory wages.

The anti-retaliation provisions also make it unlawful for employers to retaliate against an employee for opposing any practice made unlawful under the employment discrimination statutes. Opposition can likewise take many forms, so employers must be careful to identify conduct that could be considered “protected activity” for purposes of a retaliation claim.

Adverse employment actions can also take many forms beyond just disciplining or terminating employees. Some examples of adverse activity are:

  • transferring employee to a less desirable position or shift;
  • threatening or actually making reports to authorities (such as reporting immigration status or contacting the police);
  • scrutinizing an employee more harshly than other employees;
  • verbally or physically abusing an employee;
  • giving an employee a performance evaluation that is lower than it should be;
  • changing an employee’s schedule; or
  • removing benefits.

Engaging in protected activity does not give an employee a free pass at work, however. Employers are free to discipline or terminate workers so long as the employer’s decisions are based on non-retaliatory and non-discriminatory reasons. Employers should carefully consider timing when making decisions related to an employee who has engaged in activity protected by the federal employment laws. The shorter the time period between an employee’s protected activity and the adverse employment action, the more likely it is that the EEOC or a court could determine that the employer has retaliated against the employee. Employers should also document their employment decisions in order to establish that the decision was not motivated by retaliation. As with any employment issue, documentation is key. The more evidence an employer has supporting its decision-making process, the better position the employer will be in to defend a discrimination or retaliation claim.

When considering whether to take action against an employee who has recently engaged in activity protected by Title VII, the ADEA, the ADA or GINA, employers should consider how they have handled other employees in similar situations. Employers should treat all employees similarly unless they can identify a non-discriminatory/non-retaliatory reason for treating an employee differently than other employees.

Employers should also be aware that employees may use the anti-retaliation laws preemptively against employers. For example, an employee who has not been performing well at work might complain about discrimination or harassment in an effort to avoid discipline or to set up a retaliation claim against the employer should the employer take action against the employee.

Fortunately for employers, courts are sensitive to this issue. In 2013, in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013), the U.S. Supreme Court held that to prevail on a retaliation claim, an employee must prove that "but for" a retaliatory motive, the employer would not have taken the adverse action against the employee. Therefore, if an employer can establish that it had a legitimate motive for the employment decision other than retaliation, the employee cannot prevail in his or her retaliation claim.

In reaching this decision, Justice Anthony Kennedy noted that applying a lower causation standard to retaliation claims could “contribute to the filing of frivolous claims, which would siphon resources from efforts by employer, administrative agencies, and courts to combat workplace harassment. Justice Kennedy gave an example of “an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location. To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination; then, when the unrelated employment action comes, the employee could allege that it is retaliation.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. at 2531–32, 186 L. Ed. 2d 503 (2013).

In August 2016, the EEOC issued guidance for employers regarding retaliation, which is available on the EEOC’s webpage at https://www.eeoc.gov/laws/guidance/retaliation-qa.cfm. While this guidance does not have the force of law, it is illustrative of how the EEOC will consider retaliation claims filed by employees.

Although this article focuses on anti-discrimination and anti-retaliation laws, employers should be aware that other federal laws not enforced by the EEOC, such as the Family and Medical Leave Act, the National Labor Relations Act, and the Occupational Safety and Health Act, also contain anti-retaliation provisions. Employers should likewise take care when making employment decisions relating to employees who have engaged in conduct protected by these laws.