View All | February 2021 Newsletter Edition


The Equal Employment Opportunity Commission (EEOC), the investigator and enforcer of the federal job discrimination laws, is trying to put itself in your shoes. On its website, the EEOC introduces its treatment of retaliation this way:

“Receiving a charge or complaint of discrimination can be frustrating especially when you’re confident you’ve done nothing wrong. You may want to confront the employee who filed the complaint to demand an explanation, assert your innocence or insist that he withdraw the complaint.”

“Don’t do it,” the EEOC warns.

Treating Employees “Less Fairly”

By the EEOC’s definition, retaliation occurs when you treat anyone who works for you today, anyone who is seeking a job with you, or anyone who used to work for you, “less fairly” because they:

  • Reported discrimination (whether it was reported to you, to the EEOC, or to another governmental entity),
  • Participated in a discrimination investigation or lawsuit, such as by serving as a witness, or
  • Opposed discrimination, such as by threatening to file a complaint.

How can you treat a former employee “less” fairly you might wonder? Answer: By giving him or her a bad reference. Discriminating against a job candidate can mean anything from simply not hiring the person, to hiring but with unequal employment terms.

The EEOC offers this hypothetical example of retaliation that might surprise you. Suppose a male employee complains to his supervisor about sexist graffiti sprinkled around the workplace that, he was told by several female coworkers, is offensive to women. The supervisor fires the male employee for being “a troublemaker” – notwithstanding the fact that he wasn’t asserting that he personally was offended by the graffiti.

The EEOC states that in such a case, employees don’t have to claim that they themselves were treated differently based on race, color, national origin, sex including pregnancy, sexual orientation, religion, disability or genetic information. They can file a retaliation claim if they believe they were punished, harassed or otherwise treated differently because they opposed discrimination.

Charges Without Charges

Along similar lines, an employee can file a legitimate retaliation case even if he never actually files an actual discrimination claim with the EEOC, or files one but it’s found to lack merit.

Consider an allegation of age discrimination. The threshold for age-based employment discrimination allegations is 40. While employees below age 40 might not get far with an age discrimination claim, they can still succeed with the EEOC if they allege that they faced retaliation for making an age discrimination complaint.

Here are a few more scenarios that can result in a ruling against an employer if retaliation is evident. The employee (and in some cases, job applicant):

  • Threatens to file a discrimination case, but never actually does,
  • Discusses employment discrimination at his workplace with an attorney,
  • Refuses to obey an order he believes is discriminatory,
  • Requests a job accommodation for a disability, or
  • Has filed a discrimination complaint against a former employer.

When Inconsistent Treatment is Okay

Whether an employee is treated “less fairly” than another is not always clear-cut. The EEOC acknowledges that under certain circumstances, different treatment can be justifiable. Take a look at these examples from the EEOC.

“You may decide to hold an employee to stricter performance or conduct standards than you impose on other employees because the employee has a high-profile role that merits stricter standards.”

“You may suspend one employee for failing to complete an order on time and issue warnings to other employees who failed to complete orders on time because the first employee has repeatedly missed deadlines and the other employees have never missed deadlines before.”

“You may need to postpone a promotion because your business’s current financial situation does not allow you to grant the promotion in the originally anticipated time frame.”

EEOC’s Tips to Help Avoid Problems

The best plan may be to limit the prospect of ever having to defend yourself from a retaliation claim. Here are a few general employment policy tips from the EEOC:

  • Explain your rules and expectations to employees, including your discrimination policies,
  • Use an open-door policy and encourage employees to share any concerns they may have about possible discrimination. Promptly respond to any questions and complaints.
  • Hold employees accountable for complying with and enforcing discrimination policies, and
  • “Don’t take your frustrations [about a discrimination complaint] out on the employee.” Instead, treat a complaining employee as if he had never made a complaint, taken part in an investigation, spoke out about discrimination against others, or filed a lawsuit.

Finally, if you’re facing a discrimination allegation, keeping a cool head may be a challenge because it may feel as though your personal integrity is under attack. But as in any other emotionally charged situation, recognize that while you may feel motivated to act hastily, the best policy is to resist that temptation.

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