Can I be fired for complaining about discrimination or harassment on the job?
Back in March we reported that the Equal Employment Opportunity Commission proposed new guidance on employment retaliation. The EEOC published its final rule in September, owing to the fact that retaliation has become the most common type of claim filed with the agency. In fact, 45 percent of all charges filed last year were related to retaliation.
What is Retaliation?
A retaliation claim can be brought against an employer who takes any action that adversely affects the conditions of employment of a worker who complains about discrimination, harassment or other workplace violations. These actions can come in overt forms, such as discipline, negative evaluations, issuance of warnings, salary reduction, demotion, or firing. At the same time, retaliation may be more subtle: employers may change work shifts or job assignments while managers, supervisors and coworkers adopt hostile attitudes or behaviors toward employees who have made a complaint.
The New Guidance
The EEOC’s new guidance has not changed the grounds for making a retaliation claim but rather has expanded the definition of “material adverse action” and protected activity. In so doing, it has gone beyond many of the definitions that the courts have used in interpreting laws in this area. Now the EEOC views any action to be materially adverse if it deters an employee from engaging in protected activity even it is unrelated to the employee’s work.
While the courts have long ruled that utterly baseless claims are not considered protected activity, the EEOC’s new guidance indicates that an employee can file a claim with the agency whether or not he or she reasonably believes that the allegations are or could be viewed as unlawful conduct.
In short, the new guidance poses compliance problems for many employers, even though the agency has also proposed steps that employers can take to avoid retaliation. These so-called “promising practices” include instituting a formal written anti-retaliation policy that includes examples of retaliation that managers may not otherwise realize are adverse actions actionable.
It is also necessary to establish a reporting mechanism for employee concerns about retaliation. Employers should also train all managers, supervisors, and employees on the its anti-retaliation policy and provide disciplinary measures for those who violate the policy, including termination. In the end, complying with the EEOC’s broadened definition of employment retaliation requires the advice and counsel of an experienced employment law attorney.