What Your Firm Needs to Know About Liability For Retaliatory EEOC Actions.

Hopefully, most employers know that they are prohibited from discriminating based on race, color, sex, religion, national origin, age, disability and sex. However, what many employer may not be aware of is that the manner in which they handle a discrimination lawsuit may expose them to liability for lawsuit based on a charge of retaliation. The Equal Employment Opportunity Commission reports that in 2004 alone nearly 25,000 complaints for retaliation were filed in their office and over 90 million dollars in sanctions were imposed based on these complaints. Consequently, it is necessary for most HR managers to be aware of how an EEOC charge of retaliation may emerge and what they can do to prevent such unfortunate and unpleasant developments.

A retaliatory action may be brought against an employer if the employer takes an "adverse action" against a "covered individual" because he or she engaged in a "protected activity." Since the terms: adverse action, covered individual and protected activity play such an important role in determining if an employer has engaged in prohibited retaliatory activity it is necessary to explore the meanings of each one of these words.

A person engages in a protected activity if he or she opposes a discriminatory practice or aids another in filing and prosecuting a complaint for discrimination. The employee does not need to protest an actual discriminatory practice. If the employee believes that the employer's actions are discriminating when in reality the employer is in full compliance with the law the employee still has the right to oppose the employers actions and this opposition will qualify as protected activity. Common examples of protected activity include: complaining about alleged discriminatory; threatening to file a charge of discrimination; picketing in opposition to discrimination; or refusing to obey an order reasonably believed to be discriminatory. Protected activity does not include illegal activities such as threats of violence.

Generally, an adverse action is a an action taken by the employer against an employee who engages in protected activity. Some examples of adverse actions include: termination, refusal to hire, denial of promotions, negative evaluations or negative references. Additionally, physical assault, threats of any kind, including the threat to sue the employee, are also examples of adverse actions. The EEOC states that stray negative verbal comments will not qualify as adverse action. However, such comments should be discouraged especially if made by persons in management positions because they could lead to allegations that an unfavorable review of the employee or denial of a promotion was the result of the attitudes held towards the employee as opposed to his/her work performance.

Finally, a person is a covered individual if he or she has in some manner made her opposition to a discriminatory practice known, filed a complaint for discrimination, or assisted someone in their attempt to requested accommodations or present a claim for discrimination. Additionally, the family members and significant others of a person who alleges that they were discriminated against are covered persons.

When drafting employee handbooks and developing internal policies employers should keep in mind the definitions of covered persons, protected activity and adverse actions. Internal policies should discourage adverse actions and must instruct management to be especially cautions when interacting with covered persons and employees involved in protected activity.