Equal employment laws (EEO) have protections against employer retaliation. Retaliation is an adverse employment action an employer takes against an employee who, for example, whistle blows against their employer, makes a claim of discrimination, or even participates in a wrongful employment action investigation against the employer.
Most employers’ EEO and Harassment policies include a specific no retaliation term reminding both employee and employer that retaliation for participation in or making an allegation of discrimination or harassment is protected against.
On March 10, 2022, the U.S. Department of Labor (DOL) issued Field Assistance Bulletin No. 2022-02 memorializing its protections against retaliation. The Bulletin makes clear that retaliation protections for employees are in place in many other employment laws besides Title VII of the Civil Rights Act. Anti -retaliation provisions are also present in the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the National Labor Relations Act (NLRB) to name a few major laws.
The Courts have seen marked increase in retaliation lawsuits in recent years. In one way this makes sense. To prove retaliation all you have to do is show that the person who suffered an adverse employment action was engaging in some act involved around a discrimination or other employment law violation and the employer took adverse action against them in a time proximate to that act. It’s a lot tougher to legally prove a wrongful employment act such as discrimination.
The adverse act of retaliation does not just include termination or some formal disciplinary act on the employee. The DOL Bulletin guidance notes that retaliation acts include eliminating overtime, reduction in hours, demotion in position, or not giving a promotion that was due. Retaliation can also include exclusions from meetings, blacklisting, or a change to another shift that was unwanted and undesirable. The above actions are all noted in the guidance as signs of retaliation by an employer that the DOL will investigate or pursue. Think also constructive discharge – the act of making employment so onerous the employee quits. This is considered, if proven, wrongful discharge.
Most of us would assume just the employer could be the bad actor in a retaliation action. The DOL’s March Bulletin also notes retaliation can be from agents outside of work such as an individual or outside entity that acts to further the alleged retaliatory act of the particular employer. What form might this take? Perhaps a subsequent employer can be induced to fire the employee by the previous employer. This form of retaliation is also noted by the Guidance.
And do not forget that acting against an employee that makes a mistaken assertion, erroneous so to speak, is also protected against retaliation. Mark Tabakman in his 4/22/2022 article DOL’s New Retaliation Focus Requires Employer Vigilance explains a simple situation where retaliation may arise – when an employee believes they are owed overtime pay and makes a complaint about it. If the employer then takes some action against them, the employee can use the protections of anti-retaliation even if it were shown overtime was never owed.
To avoid retaliation allegations, employers are advised to monitor disciplinary or other adverse actions in “proximity” to the employee’s participation or acting on another wrongful employment action. Mr. Tabakman’s article states “any employer who wants to discharge a complaining employee” should “put some space and distance between the instigating event and the adverse action.” He further advises that “even before spacing out the action temporally, there must be a valid basis for adverse action.” In other words, an employer does not avoid a retaliation claim just by putting time between the protected acts of the employee and the employer’s action to discharge or otherwise retaliate. “The essence of a reasonable basis is consistent and fair treatment of employees across the board.”
An employee handbook that contains a comprehensive EEO and Harassment policy should include statements prohibiting retaliation. Make sure management is trained on what to do in the event of a complaint of retaliation, and more importantly, what activity not to engage in that may arguably be retaliation. This can be tough if the employee has also engaged in other activity/behavior adverse to the employer’s rules that is also in close proximity to the initial anti-retaliation activity.
Mr. Tabakan argues that retaliation is such an issue of legal concern, employers may want to proactively get out in front of any retaliation lawsuit by erring “on the side of harsher, rather than lighter, discipline for people engaging in retaliatory behavior.”
Source: Law 360 Employment Authority. DOL’s New Retaliation Focus Requires Employer Vigilance (4/22/2022)