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Federal Guidelines Protect
Against Job Retaliation

Federal employment laws prohibit unfair activity by outlawing more than illegal discrimination. They also outlaw reprisals against people who complain about illegal discrimination.

Such anti-discrimination laws as the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act prohibit employers from retaliating against both current and former employees for engaging in "protected activity."

The Equal Employment Opportunity Commission recently issued guidelines to its investigators clarifying what might constitute unlawful retaliation under these laws, which the EEOC enforces.

Illegal retaliation or reprisal occurs when a person engages in protected activity, i.e., "opposition to discrimination or participation in the statutory complaint process"; suffers "adverse action"; and can point to a "causal connection between the protected activity and the adverse action."

Chilling Effect

In its guidelines, the EEOC asserts that "[v]oluntary compliance with and effective enforcement of the anti-discrimination statutes depend in large part on the initiative of individuals to oppose employment practice that they reasonably believe to be unlawful, and to file charges of discrimination.

"If retaliation for such activities were permitted to go unremedied, it would have a chilling effect upon the willingness of individuals to speak out against employment discrimination or to participate in the EEOC's administrative process or other employment discrimination proceedings."

Typically, protected activity that might give rise to a claim of retaliation would include opposing an unlawful employment practice, filing a charge, and testifying or otherwise assisting in an investigation or hearing.

Moreover, the varieties of adverse action forming the basis of such a claim include a denial of promotion or job benefits, refusal to hire, disciplinary action, threats, or harassment.

Causal Connection

That someone has simply engaged in protected activity and suffered adverse action, however, is not enough. Rather, there must be a "causal connection" between the two.

A causal connection might be proven by direct evidence-typically, some written or oral statement by an employer acknowledging that the action was taken as a result of the protected conduct.

The EEOC acknowledges, however that "[d]irect evidence of retaliation is rare." Accordingly, a connection may also be established by "circumstantial evidence raising an inference of retaliation" if the employer cannot provide evidence of "a legitimate, non-retaliatory reason" for the adverse action.

Published in the Fall 1998 Edition of In Brief

Questions or comments?
Contact Lee Combs @ 480.731.8878

Maricopa Community Colleges
Office of General Counsel
2411 West 14th Street
Tempe, AZ 85281-6942
480.731.8877 / 480.731.8890 fax

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