Against Job Retaliation
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."
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.
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.
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.
in the Fall 1998 Edition of In Brief