In 2010, retaliation claims became the most frequently filed claim by workers in the United States, according to data released by the Equal Employment Opportunity Commission in January 2011. This represented a major shift in the statistics. Until then, race claims had consistently been the most common charge since the inception of the EEOC in 1965. Employers should consider whether they are taking appropriate action to prevent retaliation claims and mitigate liability. Employers need to provide a clear policy against retaliation and supervisors need to be trained appropriately. Employers might also want to ensure they are well-positioned to participate effectively in any EEOC retaliation investigation.
The EEOC protects employees, not only from discrimination and harassment contrary to federal law such as Title VII, but also from retaliation by the employer for making a complaint about or participating in an investigation of alleged discrimination or harassment. An employer may be found guilty of retaliation even if the initial allegation was not sustained. The EEOC makes clear that "petty slights and trivial annoyances are not actionable" because such instances would be unlikely to interfere or dissuade employees from reporting serious acts of discrimination. However, actions that have a significant effect on employment, such as demotion, firing, suspension, threats and harassment, would be considered a retaliatory adverse action.
Once a claim has been filed, the EEOC will provide details of the allegation and request a response from the employer. Then the EEOC will assign an investigator to review both the claimant's allegations and the employer's response to those allegations. The EEOC has stated that the average length of a retaliation investigation is 182 days. Sending well-prepared, timely materials that fully answer all aspects of the allegation can help to reduce the amount of time taken for a case to be heard.
Elements the EEOC Investigator is Assessing
The EEOC investigator must review the claim to determine whether it contains the three essential items critical to establishing a claim of retaliation. These elements include a protected action, such as participating in an EEOC interview; adverse action, such as a demotion or forced transfer resulting in a loss of pay; and the ability to demonstrate that the two actions were connected. In other words, it has to be established that the demotion stems from the employee's participation in the interview.
The employer must be able to demonstrate that if an adverse action occurred, it was for a legitimate, nondiscriminatory business reason. The reason should be clearly supportable, in line with company policies and procedures. For example, if the company can show that the employee had been counseled and progressively disciplined on several occasions for poor performance, both before and after participating in the protected activity, and that she was ultimately demoted for continuing performance issues, then the company might be able to show that the demotion was not a result of retaliation.