The Equal Employment Opportunity Commission (“EEOC”) has announced a $1.95 million settlement of retaliation claims made against the Chicago-based American Dental Association, pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”). The large dollar settlement underscores the risk employers face from such claims, and the value of having anti-retaliation policies in place. It also highlights the need to provide proper training to allow supervisors to recognize and address the circumstances leading to such claims.

According to the EEOC, the case began when the association’s former chief legal counsel and its director of human resources approached the board of directors to complain about the association potentially committing violations of federal anti-discrimination laws, including Title VII, the Age Discrimination in Employment Act and the Americans with Disabilities Act. Both the legal counsel and director of human resources were subsequently discharged by the board, and filed Charges of Discrimination with the EEOC. Based on its investigation, EEOC found reasonable cause to believe that the two employees were discharged in retaliation for complaining about the potential violations.

The American Dental Association has denied any wrongdoing in the matter, but as part of the resolution of the matter, has agreed to provide additional training and institute other remedial measures. In announcing the settlement, Julianne Bowman, the director of the EEOC’s Chicago’s District Office, stated:

"The position of EEOC is that human resources professionals and in-house lawyers who advise their employers to abide by anti-discrimination laws are engaged in protected activities, and any retaliation against them for doing so is illegal."

Nearly half of all claims filed with the EEOC address allegations of retaliation. The danger from such claims is that even if the underlying claim of discrimination is groundless, that does not prevent a viable retaliation claim. Retaliation occurs when an employer takes a materially adverse employment action against an employee or job applicant because that individual has asserted their right to be free from employment discrimination, including harassment. Asserting such rights is called "protected activity," and it can take many forms. Not surprisingly, EEOC guidelines take a very broad and expansive view of what constitutes protected activity for purposes of triggering a retaliation claim. Examples of protected activity listed in the guidelines include:

  • Taking part in an internal or external investigation of employment discrimination, including harassment;
  • Filing or being a witness in a charge, complaint, or lawsuit alleging discrimination;
  • 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;
  • Reporting an instance of harassment to a supervisor;
  • Requesting accommodation of a disability or for a religious practice; or
  • Asking managers or co-workers about salary information to uncover potentially discriminatory wages.

The EEOC guidelines make it clear that an employee does not have to be terminated or demoted to have a viable retaliation claim, and much lesser employment actions can be enough to impose liability. For example, depending on the facts of the particular case, it could be retaliation because of the employee's protected activity for an employer to:

  • Reprimand an employee or give a performance evaluation that is lower than it should be;
  • Transfer the employee to a less desirable position;
  • Engage in verbal or physical abuse;
  • Take action that makes the person's work more difficult (for example, punishing an employee for an EEOC complaint by purposefully changing his work schedule to conflict with family responsibilities).

The EEOC guidelines acknowledge that engaging in protected activity does not shield an employee from discipline or discharge. To avoid retaliation claims, the EEOC advises maintaining a written and easily understood anti-retaliation policy, combined with training. Supervisors and managers may not know that certain acts are considered illegal retaliation or interference. Employees may benefit from instruction on how to handle tough situations where retaliation might occur, or where the impression of retaliation might be created. The importance of documentation and review of employment actions is also stressed. The guidelines suggest that managers and supervisors may be more aware of actions that can be viewed as retaliatory if they are required to justify negative employment actions in writing.