The Most Common Way Employers Get in Trouble with the EEOC

Posted by Edward Sharkey on Mon, 03/28/2016 - 04:00

The EEOC recently released its annual report detailing enforcement and litigation data for 2015. Employer retaliation topped the list of most common charges, representing 44.5% of all charges filed. The EEOC is currently working on new guidance for employers on the topic of retaliation.

It is a little odd that discrimination is not the greatest alleged problem. Rather, it is the punishment of employees who complain about discrimination. Retaliation occurs when an employer takes an adverse employment action against a covered individual because the employee engaged in a protected activity. Protected activities can include opposing a discriminatory practice, complaining of discrimination, or requesting a reasonable employment accommodation.

Adverse employment actions include termination, negative evaluations, refusal to hire, denial of an earned promotion, unjustified negative references, threats, and increased workplace surveillance. Mere negative comments or a justified negative evaluation do not rise to the level of an adverse employment action. But a “justified” negative evaluation is in the eye of the beholder.

Individuals covered by the law include those participating in any of the protected activities described above as a result of alleged discrimination based on race, color, sex, religion, national origin, age, or disability. Coverage also extends to anyone who has a close relationship with an individual who engages in one of the protected activities referenced above. Individuals calling attention to violations outside of the scope of employment discrimination are not covered by anti-retaliation laws. For example, an individual who raises ethical concerns regarding his employer is not covered by these protections.

Like other employment regulation, the law on retaliation makes it very hard to make certain decisions without specialized advice. Do you have a terrible employee who, among other things, made an unjustified complaint of discrimination? Your government wishes you “good luck” terminating them without getting sued.

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