WORKPLACE RETALIATION UNDER THE CIVIL RIGHTS ACT

Marie Petran, Troy University Hank Findley, Troy University ABSTRACT This paper explores the elements that define workplace retaliation and the actions that are needed to proactively prevent retaliation. As workplace retaliation statistics continue to rise. New factors govern how retaliation claims are covered. Organizations need to be aware of situations that constitute retaliation, how to avoid retaliation claims, and what to do if a retaliation claim is filed. This paper sheds light on the areas that are needed to prove retaliation took place. These factors are defined by research taken from the Equal Employment Opportunity Commission web site and other related articles. INTRODUCTION According to the Equal Employment Opportunity Commission (EEOC), retaliation, occurs when an employer, employment agency, or labor organization takes an adverse action against a covered individual because he or she engaged in a protected activity (Equal Employment Opportunity Commission [EEOC], 2005). The three main components that define retaliation are adverse action, the covered individual and the protected activity. Each component of retaliation will be covered accordingly. This paper will explore the facets that make up retaliation, how to prove retaliation, how to prevent retaliation, and the steps to take when filing a charge of employment discrimination with the EEOC. Also the case Burlington Northern & Santa Fe V. White will be viewed to project the ways in which the Supreme Court has redefined retaliation in the workplace. WORKPLACE RETALIATION DEFINED Retaliation claims have risen to account for one out of four claims filled with the EEOC (Thompson, 2006). As you can see from Table 1, the number of cases filed through the EEOC regarding retaliation is continuing to rise. From under 15% in 1992 to about 30% last year, retaliation has the highest percent increase out of any other charging statistic with the EEOC. Over the past ten years the retaliation charges have doubled and are projected to continue to rise. Title VII of the Civil Rights Act prohibits discrimination based on retaliation (EEOC, 2005). In order to understand how employees are protected from acts of retaliation we need to explore what constitutes retaliation. Recently Justice, Stephen Breyer, redefined retaliation based on Burlington Northern V. White case (Schleifer, 2006). Justice Breyer defined retaliation as adverse action that is harmful to the point that could dissuade a reasonable employee from filing or supporting a discrimination charge (Schleifer, 2006.). As noted above there are three main elements that define retaliation: adverse action, the covered individual, and a protected activity.

Supreme Court Case Redefines Retaliation The case Burlington Northern & Santa Fe Railway Co. V. White helped redefine workplace retaliation with the Supreme Court ruling on June 22, 2006 (Thompson, 2006). Thompson (2006) describes the facts that underlie the case as follows: Sheila White was the only woman in her department at one of Burlington Northerns (BN) train yards. BN hired her as a track laborer a job that involves removing and replacing track components, transporting track material, cutting brush, and clearing litter and cargo spillage from the right-of-way. Soon after White arrived on the job, BN assigned her to the less arduous and cleaner job of forklift operator. Two months after her hire, White complained to BN officials about sex-based comments by her supervisor. BN suspended the supervisor and ordered him to attend a sexual-harassment training session. However, BN also removed White from forklift duty and assigned her to perform only the track laborer tasks (her co-workers had complained that a more senior man should have the easier forklift operator job). White filed a charge with the EEOC claiming that the reassignment of her duties amounted to unlawful gender-based discrimination and retaliation for her complaint about the supervisors comments. She filed a second retaliation charge shortly thereafter, claiming she had been placed under surveillance and that her daily activities were being monitored. Days following receipt of the charge, BN suspended White without pay for insubordination when she disagreed with her immediate supervisor about what truck should transport her from one location to another. White filed an internal grievance. The company determined that she had not been insubordinate, reinstated her, and awarded back pay for the 37-day suspension. White filed an additional charge of retaliation based on the suspension. Consequently, the charging party, White, filed suite claiming that the actions taken by the employer such as the reassignment of job duties and the suspension were acts of retaliation against her complaints (Thompson, 2006). This case made its way all the way up to the Supreme Court in which the Supreme Court ruled in favor of White. The Supreme Court declared that the actions taken against White under the discrimination laws of Title VII were enough to prove retaliation (Greenhouse, 2006). The Supreme Court noted that the organizations actions were adverse in that she endured a material change in job duties to less a desirable job duty (Thompson, 2006). Also with her suspension the Court ruled that more than a month without pay could be significant enough to dissuade her from complaining (Thompson, 2006). Adverse Action Adverse action happens when an employer tries to prevent an employee from opposing a discriminatory practice (EEOC, 2005). The actions that constitute retaliation are different in every case. According to Thompson (2006), some common retaliation acts emphasized by the Supreme Court include:

Changes in job duties to less desirable job duties. Temporary Suspension. Schedule Changes. Exclusions from important meetings or job-related activity.

Some other examples of retaliation activities that employers wish to bestow on the employees include both verbal and physical threats (Solano & Kleiner, 2003). Not only is the complaining party protected but also those that are close to the party. So, acts by the employer to terminate the charging partys spouse or relative are also included (Solano & Kleiner, 2003). Employers are also at fault when they try and prevent the employee from getting hired elsewhere. These types of actions include providing negative references to other employers, bad recommendations, and other activities that will influence the decision to hire the employee. In 1997, The United States Supreme Court ruled that this type of activity of an employer that wishes to make it difficult for a former employee to get hired elsewhere is deemed illegal retaliation (Solano & Kleiner, 2003). Covered Individuals It is very important to know exactly who represents the protected class. According to the EEOC (2005) the covered individuals under Title VII concerning retaliation include the following: Employees who oppose unlawful practices. Employees who participate in proceedings. Individuals who are close to employees who undergo protective activity. Employees who request accommodations based on discriminatory factors protected under Title VII.

The protected individuals listed above are only enforced under violations of employment discrimination (EEOC, 2005). So, the protected class consists of individuals who all share a common characteristic such as race, color, sex, national origin, religion, age, and disability, or witnesses to such discrimination (Fisher, Shoenfeldt & Shaw, 2006). Covered Activity Certain activities of opposition are protected in employment discrimination cases. Opposition occurs when an employee informs an employer of prohibited discrimination in the workplace (EEOC, 2005). Opposition is protected from retaliation if the opposition is made in a reasonable, good-faith manner (EEOC, 2005). The following examples of opposition that are protected according to the EEOC (2005) include: Complaints about alleged discrimination against oneself or others made to anyone in the workplace. Warning about filing discrimination charges. Protesting against discrimination. Refusing to engage in discriminatory activity.

Participation in a particular discrimination proceeding is considered a protected activity too (EEOC, 2005). EEOC (2005) examples of participation include: Filing Charges of employment discrimination. Participating in any internal discriminatory investigations. Cooperating as a witness in an investigation or litigation.

As noted above Title VII protects various disabilities and different religions. So if an employee requests certain accommodations toward these types of discrimination elements they are also considered members of the protected class (EEOC, 2003). Whistleblowers Court rulings to protect whistleblowers have also been redefined. A whistleblower is an employee who discloses information that can prove that the employer violated the law (Solano & Kleiner, 2003, p. 206). Courts usually rule in favor of whistleblowers and strictly protect them against any organizational retaliation. However, retaliation towards whistleblowers has a negative impact on employees. Employees are afraid to confront acts of discrimination due to fear of workplace retaliation (Solano & Kleiner, 2003). Whistleblowers are protected under a number of different state as well as federal laws (Solano & Kleiner, 2003). PROVING WORKPLACE RETALIATION In order for an individual to prove retaliation took place they need to uphold the three essential elements that make up retaliation noted above. The employee who is claiming retaliation occurred must prove that there was an adverse action taken by the employer, that the activity was protected, and that they are a member of a protected class (see figure 1). Solano and Kleiner (2003), offer the following insight on proving if the employer is guilty of retaliation. 1) Did the employee express to anyone that the discrimination was taking place? 2) Is the employee making this complaint reasonably or in good faith? 3) What is the relation of the employee to the employer? And what is the relationship of the employee to the person he/she talked to about the discrimination? 4) Was adverse action involved? 5) If adverse action did exist was there a legitimate justifiable reason for it? In short, complaints need to prove that the actions made against them are strong enough to deter reasonable employees away from filing or supporting a complaint. An investigation needs to take place to cover the questions asked above. The employee must express to a coworker or supervisor that the alleged discrimination took place. This is to ensure that the discrimination was known to others. The complaining party needs to make the complaint in a reasonable act of good faith. This is to prove that the employee believed that an act of discrimination was a result of a retaliatory decision that was job related. An investigation needs to explore the type of

relationship the employee has with the manager and other co-workers. This action reinforces that the complaint was made in good faith and is justifiable as a reasonable complaint. Proof that an adverse action took place can be proven through direct or circumstantial evidence (EEOC, 2000). Direct evidence presents itself in a form that is easily identified and recalled. According to the EEOC (2000) direct evidence is any evidence that is either written or verbal that proves that the charging party underwent the certain action because he/she engaged in a protected activity. Although direct evidence of retaliation is rare, if obtained the case is easier to prove. Examples of direct evidence can present itself in the form of a taped phone call in which the employer enforces retaliatory behavior. Emails the employee saved also constitute documentation of retaliation. Another form of evidence is circumstantial evidence. Circumstantial evidence is the most common evidence of proving retaliation. The EEOC (2000) guidelines for supporting circumstantial evidence are as follows: Evidence needs to show that retaliation was the cause of the action. Employer needs to prove that the reason for the action was non-retaliatory in nature. Charging party then refutes this claim by proving that the employer is using other excuses to cover up the retaliation actions.

Cases of retaliation are easier to prove when adverse action took place shortly after the challenged activity (EEOC, 2000). Cases in which the employer was aware of the employees protected class and still took adverse action are also easier to prove (EEOC, 2000). Cases in which the employer can find some type of reason behind an action that was non-retaliatory can be switched to retaliatory reasoning if the complaining party can prove that the action was pretext (EEOC, 2000). The complaining party will have to prove that the discriminating action was pretext by proving that the employer treated him/her differently from others in a similar situation (EEOC, 2000). This will prove that other members not in a protected class received other treatment in similar situations which is grounds for adverse action. PREVENTING WORKPLACE RETALIATION Workplace retaliation will not totally be prevented every time; however, organizations can take actions to limit occurrences of retaliation. The best practice to help prevent retaliation in the workplace is to educate employees and managers on retaliation principles. The best way to educate employees is to adopt a retaliation policy (Solano & Kleiner, 2003). Solano and Kleiner (2003) express the following should be included in a retaliation policy. A clear definition of retaliation. The elements involved in retaliation. A statement that the organization does not tolerate retaliation by anyone. A statement that the organization will not treat unfairly anyone that files a discrimination claim. The steps needed to report and file a claim.

Retaliation Policy Practices It is good practice to have the director of Human Resources adopt a retaliation policy that complies with the guidelines set by the EEOC (Solano & Kleiner, 2003). Once the policy has been written it is wise to have the policy double checked by the organizations legal department to ensure that the policy is upheld in court (Solano & Kleiner, 2003). One way to ensure that the retaliation policy will uphold in court is to ensure that the steps are justifiable. There needs to be multiple stages in which the complaining party reports the retaliation claim to multiple (different) managers (Solano & Kleiner, 2003). This will make certain that the fear factor is lessened to limit intimidation and prove fairness. Outside Investigators Organizations that have to deal with severe cases of retaliation may seek outside help. Hiring a professional to investigate a retaliation case enforces that bias factors do not play a role in the decision of the case (Solano & Kleiner, 2003). All investigations regardless of whether they were performed by an internal employee or outside member need to provide full documentation of each case. Documentation of each case is the best proof that will hold up in court (Solano & Kleiner, 2003). Communicate the Policy Having a policy is not enough. The policy needs to be effectively communicated to all employees by their supervisors or managers. The policy needs to be posted in an easy to access place such as the companys intranet, or bulletin postings (Solano & Kleiner, 2003). One way to effectively communicate a retaliation policy is to include training on retaliation to all employees. Managers and employees should be trained on anti-retaliation and anti-discrimination practices (Solano & Kleiner, 2003). By informing the employees and managers through training on this issue, organizations can limit the exposure to such wrongdoings. Disciplinary Actions The policy needs to also include disciplinary actions. Each employee and manager needs to be informed of the consequences if the retaliation policy is breeched (Solano & Kleiner, 2003). Specifying the types of actions the organization will take if retaliation occurs will help narrow the likelihood that retaliation will occur. Each employee should be similarly disciplined contingent upon the type of action taken. Sometimes employers can prove to the courts that certain disciplinary actions are not taken into account as a result of retaliation but as a result of the employees poor work behavior, absenteeism and tardiness, or violation of company policies (Solano & Kleiner, 2003). Having a defined disciplinary policy for certain actions will justify the organizations actions and ensure that they do not knowingly or willingly practice adverse actions towards employees.

Other Practices Organizations that already have discrimination or retaliation policy in place need to ensure that the proper training and methods are used to communicate those topics (Thompson, 2006). As with the case on retaliation, discrimination laws change and evolve as the years pass. So the organization needs to ensure that each employee knows what the law states in matters on employment discrimination. Formal and informal complaints on discrimination cases or retaliation cases need to be considered with the same seriousness as complaints dealing with workplace harassment or the like (Thompson, 2006). Organizations need to ensure that all of the policies dealing with discrimination, harassment, and retaliation are the most up-to-date with the EEOC (Thompson, 2006). Any performance issues should be addressed as soon a possible (Thompson, 2006). If the performance issue is addressed as it arises, those managers and employees will have a chance to meet or be counseled before any knowingly adverse action takes place. The organization needs to set up different procedures for managers to follow in dayto-day occurrences (Thompson, 2006). HOW TO FILE A DISCRIMINATION CHARGE WITH EEOC This section explores the facts related to filing a charge of employment discrimination provided by the EEOC web site. EEOC defines who can file and how to file, what information must be provided to file a charge, and the time limits that constrict filing a charge of discrimination. Filing a discrimination charge varies among federal employees. In this case they need to seek the guidelines for filing under the Federal Sector Equal Employment Opportunity complaint Processing (EEOC, 2003). Who Can File a Discrimination Charge? As we explored earlier in the paper, any individual that has reasonable belief that his/her rights have been violated may file a discrimination charge. The person filing needs to file in an act of good faith, meaning that they believe that the action against them violates their personal rights protected under Title VII. A person can also file for someone else (EEOC, 2003). This action is taken in cases in which the individual or organization may choose to protect discriminated partys identities (EEOC, 2003). How to File a Charge of Discrimination? A charge can either be filed by mail or by person at the nearest EEOC office (EEOC, 2003). Accommodations can be arranged by contacting the EEOC office and requesting special arrangements. Different types of accommodations include: interpreters, accessible formats for materials, or printed versions of materials. Employees filing on the Federal level need to see guidelines for the Federal Sector (EEOC, 2003). What Information Is Needed to File a Charge? According to the guidelines provided by the EEOC (2003) for filing a charge of employment discrimination, the information needed is as follows:

The charging partys name, address, and phone number. The name, address, and phone number of the employer, agency, or union that conducted the alleged discrimination, along with the number of employees. A description that entails the alleged discrimination action. The dates the alleged discrimination occurred.

What Time Limits Constrict Filing Discrimination Charges? The laws enforce by EEOC, with the exception of the Equal Pay Act, require filing a charge with the EEOC before any private lawsuit (EEOC, 2003). Thus, there are certain time limits in which charges must be filed. In order for the charging partys rights to be protected a claim needs to be filed within 180 days with the EEOC from the date of the alleged discrimination (EEOC, 2003). However, in some situations the deadline can be extended from the set 180 days to 300 days if the charge is also covered by other state or local antidiscrimination laws (EEOC, 2003). Contacting the EEOC soon after the alleged discriminatory action takes place ensures a prompt and thorough investigation, with fewer gaps between the time of the alleged activity and the filing of the claim. CONCLUSION About twenty thousand retaliation cases were filed with the EEOC in 2004 which is double that of the statistics of 1992 (Greenhouse, 2006). Retaliation cases continue to rise. Although retaliation cases cannot be totally avoided, organizations can undertake certain practices to limit the charges. Educating the employees and managers of the policies that govern these discrimination elements is the best practice to help limit these charges. To prove retaliation took place the charging party needs to prove that they are a member of a protected class and that they participated in a protected activity. The employer needs to be aware of this activity taken by the protected class. Even though the employer is aware of this protected activity, he/she still acted with adverse action toward the charging party. The employer will have to prove that the actions made were not adverse in nature but rather as a result of a job related activity in which the employee failed to meet expectations.

FY 1992

FY 1993

FY 1994

FY 1995

FY 1996

FY 1997

FY 1998

FY 1999

FY 2000

FY 2001

FY 2002

FY 2003

FY 2004

FY 2005

72,30 87,94 91,18 87,52 77,99 80,68 79,59 77,44 79,89 80,84 84,44 81,29 79,43 75,42 Total 2 9 9 0 0 1 4 6 0 2 3 2 8 Charges 2 Race 29,54 31,69 31,65 29,98 26,28 29,19 28,82 28,81 28,94 28,91 29,91 28,52 27,69 26,74 8 5 6 6 7 9 0 9 5 2 0 6 6 0 40.9% 36.0% 34.8% 34.3% 33.8% 36.2% 36.2% 37.3% 36.2% 35.8% 35.4% 35.1% 34.9% 35.5% Sex 21,79 23,91 25,86 26,18 23,81 24,72 24,45 23,90 25,19 25,14 25,53 24,36 24,24 23,09 6 9 0 1 3 8 4 7 4 0 6 2 9 4 30.1% 27.2% 28.4% 29.9% 30.6% 30.7% 30.7% 30.9% 31.5% 31.1% 30.2% 30.0% 30.5% 30.6% Nationa 7,434 7,454 7,414 7,035 6,687 6,712 6,778 7,108 7,792 8,025 9,046 8,450 8,361 8,035 l Origin 10.3% 8.5% 8.1% 8.0% 8.6% 8.3% 8.5% 9.2% 9.8% 9.9% 10.7% 10.4% 10.5% 10.7% Religion
Retaliatio n All Statutes Retaliatio n Title VII only

1,388 1,449 1,546 1,581 1,564 1,709 1,786 1,811 1,939 2,127 2,572 2,532 2,466 2,340 1.9% 1.6% 1.7% 1.8% 2.0% 2.1% 2.2% 2.3% 2.4% 2.6% 3.0% 3.1% 3.1% 3.1% 11,09 13,81 15,85 17,07 16,08 18,19 19,11 19,69 21,61 22,25 22,76 22,69 22,74 22,27 6 4 3 0 0 8 4 4 3 7 8 0 0 8 15.3% 15.7% 17.4% 19.5% 20.6% 22.6% 24.0% 25.4% 27.1% 27.5% 27.0% 27.9% 28.6% 29.5% 10,49 12,64 14,41 15,34 14,41 16,39 17,24 17,88 19,75 20,40 20,81 20,61 20,24 19,42 9 4 5 2 2 4 6 3 3 7 4 5 0 9 14.5% 14.4% 15.8% 17.5% 18.5% 20.3% 21.7% 23.1% 24.7% 25.2% 24.6% 25.4% 25.5% 25.8% 19,57 19,80 19,61 17,41 15,71 15,78 15,19 14,14 16,00 17,40 19,92 19,12 17,83 16,58 3 9 8 6 9 5 1 1 8 5 1 4 7 5 27.1% 22.5% 21.5% 19.9% 20.2% 19.6% 19.1% 18.3% 20.0% 21.5% 23.6% 23.5% 22.5% 22.0% *1,04 15,27 18,85 19,79 18,04 18,10 17,80 17,00 15,86 16,47 15,96 15,37 15,37 14,89 8 4 9 8 6 8 6 7 4 0 4 7 6 3 1.4% 17.4% 20.7% 22.6% 23.1% 22.4% 22.4% 22.0% 19.9% 20.4% 18.9% 18.9% 19.4% 19.7%

Age

Disability

1,294 1,328 1,381 1,275 969 1,134 1,071 1,044 1,270 1,251 1,256 1,167 1,011 970 Equal Pay Act 1.8% 1.5% 1.5% 1.5% 1.2% 1.4% 1.3% 1.3% 1.6% 1.5% 1.5% 1.4% 1.3% 1.3%

Table 1. The charging statistics for each protected discriminatory element from the U.S. Equal Employment Opportunity Commission.

1. Did the employee ever complain to anyone about alleged discrimination or any other allegedly unlawful practice of any employer? (This could include, for instance, complaints of sexual harassment, improper payment of wages, or unsafe workplace conditions)

YES 2. Was the complaint made reasonably and in good faith? (Illegal or unreasonable actions or complaints, or those not made in good faith, are not protected.) OR Did the employee ever participate in any court or administrative investigation, hearing, or litigation relating to workplace conduct by filing a charge or acting as a witness or assisting in any other way?

YES

NO

3. Is the employee closely related to or associated with any person who engaged in conduct described in question 1?

YES

NO

The employer is not likely to be liable for retaliation.

NO

4. Did the employer take any negative or adverse action against the employee? This may include: refusing to hire an applicant; negative job evaluations; harassment; threats; increased observation or monitoring of the employee's performance; limiting or eliminating benefits, training opportunities or other work place opportunities; demotion; discipline or discharge; providing negative references to prospective employers; or informing prospective employers about protected activity undertaken by the employee.

YES

YES

5. If the employer took any negative or adverse action against the employee, did the employer have legitimate reasons for doing so?

NO

These reasons will be extremely important in defending against a claim of retaliation, and supporting documentation would be very helpful.

The employer may face potential liability.

Figure 1. Retaliation Reliability from San Jose State University, Office for Equity and Diversity.

REFERENCES The U.S. Equal Employment Opportunity Commission (EEOC). (2005). Retaliation. Retrieved on November 27, 2006, from http://www.eeoc.gov/types/retaliation.html. The U.S. Equal Employment Opportunity Commission (EEOC). (2000) EEOC Compliance Manual. Retrieved on November 30, 2006, from http://eeoc.gov/policy/docs/retal.html. The U.S. Equal Employment Opportunity Commission (EEOC). (2003). Filing a Charge of Employment Discrimination. Retrieved on November 30, 2006, from http://eeoc.gov/charge/overview_charge_filing.html Fisher, C., Schoenfeldt, L., & Shaw, J. (2006). Human Resource Management (6th ed.). Boston: Houghton Mifflin Company. Greenhouse, L. (2006). Supreme Court Gives Employees Broader Protection Against Retaliation in Workplace. The New York Times. Retrieved on November 29, 2006, from http://www.nytimes.com/2006/06/23/washington/23scotus.html?ei=5088&en=921286a71 cc6c254&ex=1308715200&adxnnl=1&partner=rssnyt&emc=rss&adxnnlx=1164903189eyrfaG5QrxjZWQ9+sSsInw San Jose State University. (2001). Office for Equity and Diversity. Retrieved on November 30, 2006, from http://www.sjsu.edu/hr/forms/equitydivers/(2)_Publication_-_Retaliation.pdf. Schleifer, J. (2006). Dont let the new Antiretaliation Standards involve you in a Train Wreck! Business Legal Reports. Retrieved on February 14, 2007, from http://hrdailyadvisor.blr.com/archive/2006/09/25/Workplace_retaliation_supreme_court_ decision.aspx Solano, F., & Kleiner, B., H. (2003). Understanding and Preventing Workplace Retaliation. Management Research News, 26, 206-211. Retrieved on November 24, 2006, from ProQuest database. Thompson, T, M. (2006). The United States Supreme Court Defines Retaliation and Expands Employee Rights. Fredrickson & Byron. Retrieved on November 30, 2006, from http://www.fredlaw.com/articles/employment/empl_0609_tmt.html